EXHIBIT 99.4
SYNDICATED LOAN AGREEMENT
(2005.11.28)
[Translation prepared by Xxxxx & XxXxxxxx]
[FOR REFERENCE ONLY]
BORROWER:
Amkor Technology Taiwan
COORDINATING ARRANGERS:
Chinatrust Commercial Bank Co., Ltd.
Xx Xxxxx Commercial Bank Co., Ltd.
AGENT:
Chinatrust Commercial Bank Co., Ltd.
TOTAL FACILITY AMOUNT:
One Billion Eight Hundred and Forty Million
New Taiwan Dollars (NT$1,840,000,000)
DATE:
November 30, 2005
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SYNDICATED LOAN AGREEMENT
THIS SYNDICATED LOAN AGREEMENT (the "Agreement") is made and entered into as of
November 30, 2005 by and among:
AMKOR TECHNOLOGY TAIWAN, a company organized and incorporated under the laws of
the Republic of China (the "Borrower");
The banks and banking institutions listed in SCHEDULE I attached hereto
(collectively, the "Banks" and severally, a "Bank");
CHINATRUST COMMERCIAL BANK CO., LTD. AND XX XXXXX COMMERCIAL BANK CO., LTD.,
jointly acting as the coordinating arrangers of the Banks hereunder
(collectively, the "Coordinating Arrangers"); and
CHINATRUST COMMERCIAL BANK CO., LTD., acting as the facility agent and security
agent hereunder (the "Agent").
WITNESSTH:
WHEREAS, to finance or refinance the capital expenditure of the Borrower's
project (the "Project") for developing and expanding an assembly and testing
plant in Hukou, Hsinchu, and Longtan, Taoyuan, and for purchasing machinery,
equipment and the relevant ancillary equipment, the Borrower has requested the
Coordinating Arrangers to arrange for the Banks to extend to the Borrower a
medium-term New Taiwan Dollar loan in an aggregate principal amount not to
exceed One Billion Eight Hundred and Forty Million New Taiwan Dollars
(NT$1,840,000,000) (the "Facility"); and
WHEREAS, the Coordinating Arrangers have discussed the above arrangement with
the Banks and obtained the Banks' consent to extend the Facility so requested to
the Borrower subject to the terms and conditions of this Agreement.
ARTICLE 1 DEFINITIONS
Unless otherwise defined elsewhere in this Agreement, as used herein the
following terms shall have the meanings set forth below:
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1.1 Total Facility Amount shall mean the total amount of the Facility which the
Banks commit to provide to the Borrower pursuant to this Agreement, or the
amount cancelled or reduced at any time by the Banks pursuant to this Agreement.
1.2 Facility Amount shall mean the amount of loan which each Bank commits to
provide to the Borrower with respect to the Facility, as shown in SCHEDULE I
hereto, provided the Facility Amount shall be cancelled or reduced in accordance
with the applicable provisions of this Agreement.
1.3 Majority Banks shall mean Banks whose then aggregate outstanding claims in
principal not yet repaid exceed two-thirds of the then aggregate outstanding
claims of all the Banks under this Agreement in principal not yet repaid or, if
Borrower has not drawn any of the Facility Amount yet, Banks whose aggregate
Facility Amount exceeds two-thirds of the Total Facility Amount under this
Agreement.
1.4 Commitment Ratio shall mean the ratio of the Facility Amount committed by
each Bank to the Total Facility Amount.
1.5 Loan shall mean each loan drawn by the Borrower pursuant to the applicable
provisions of this Agreement.
1.6 Drawdown Date shall mean the date the Borrower draws a Facility Amount
pursuant to this Agreement. "Initial Drawdown Date" shall mean the date the
Borrower draws a Facility Amount for the first time pursuant to this Agreement.
1.7 Business Day shall mean a banking business day in the Republic of China.
1.8 Interest Payment Date shall mean the date interest on a Loan under this
Agreement becomes payable by the Borrower, i.e., the last day of each Interest
Period.
1.9 Interest Period shall mean the period commencing on the Initial Drawdown
Date and having a duration of ninety (90) days and each ninety(90)-day period
thereafter; provided, that (i) the first Interest Period with respect to each
drawdown other than the Initial Drawdown shall commence on such Drawdown Date
and end on the last day of the then current Interest Period as established
above, (ii) the Interest Period commencing prior to any repayment date shall end
on such repayment date, and (iii) unless provided by this Agreement to the
contrary, if any Interest Period would otherwise end on a day which is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless such next succeeding Business Day falls in another calendar
month, in which case such Interest Period shall end on the immediately preceding
Business Day.
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1.10 Reference Interest Rate shall mean, with respect to each Loan, the interest
rate to be determined in the following order of priority (i.e., the interest
rate in Article 1.10.2 will prevail if the interest rate in Article 1.10.1 is
unavailable and if the interest rate in Article 1.10.2 is also unavailable, the
interest in Article 1.10.3 will prevail):
1.10.1 The rate per annum determined on the basis of the fixing rate on 90-day
commercial papers in Taiwan's primary commercial paper market as appearing on
Page 51328 of the Reuters Telerate screen at or about 11:30 A.M. on the Business
Day prior to the commencement of such Interest Period.
1.10.2 The rate per annum determined on the basis of the fixing rate on 90-day
commercial papers in Taiwan's secondary commercial paper market as announced by
International Bills Finance Corporation, Xxxxx Xxxxx Bills Finance Corporation
and China Bills Finance Corporation at or about 11:30 A.M. on the Business Day
prior to the commencement of such Interest Period.
1.10.3 The rate per annum determined on the basis of the variable rate on
three-month time deposits as posted by the Agent on the Business Day prior to
the commencement of such Interest Period.
The Borrower and the Banks both agree not to raise any objection to the result
of such quotations obtained by the Agent.
1.11 Interest Rate shall mean the per annum interest rate determined on the
basis of the Reference Interest Rate plus 1.2%, exclusive of business tax and
stamp duty, which are to be borne by the Borrower.
1.12 Compensatory Interest Rate shall mean upon the occurrence of a circumstance
to which the Compensatory Interest Rate is applicable pursuant to this
Agreement, the per annum interest rate determined on the basis of the base rate
of the Agent plus 3% per annum, exclusive of business tax and stamp duty, which
are to be borne by the Borrower.
1.13 Drawdown Period shall mean the period for which the Facility Amount is
available to the Borrower for drawdown. "Expiration Date of Drawdown Period"
shall mean the last day of the sixth month from the date of this Agreement or
the day the Borrower draws the whole of the Facility Amount, whichever is
earlier.
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1.14 Land and Buildings shall mean collectively the land, factory buildings, and
the relevant ancillary factory work facilities of the assembly and testing plant
in Hukou, Xinzhu ("Plant 3") and that in Longtan, Taoyuan ("Plant 1"), which are
owned by the Borrower. The details are shown in SCHEDULE II to this Agreement.
"Factory Buildings" shall mean the factory buildings and relevant ancillary
factory work facilities of the Land and Buildings.
1.15 Equipment shall mean the machinery, equipment and the relevant ancillary
facilities purchased (including refinanced) and installed in the Factory
Buildings (Plant 3) by the Borrower with money obtained from the Facility.
1.16 Mortgage Agreements shall mean collectively the Real Estate Mortgage
Agreement and the Chattel Mortgage Agreement, as respectively defined in Article
9.2 of this Agreement.
1.17 Mortgages shall mean collectively a first priority real estate mortgage
over the Land and Buildings ("Real Estate Mortgage") and a first priority
chattel mortgage over the Equipment ("Chattel Mortgage"), as created in favor of
the Agent pursuant to this Agreement.
1.18 Mortgaged Objects shall mean collectively the Mortgaged Real Estate and the
Mortgaged Chattel.
1.19 Mortgaged Real Estate shall mean the Land and Buildings over which the Real
Estate Mortgage has been created in favor of the Agent pursuant to this
Agreement.
1.20 Mortgaged Chattel shall mean the Equipment over which the Chattel Mortgage
has been created in favor of the Agent pursuant to this Agreement.
1.21 Appraisal Report (a) with regard to each drawdown, the Appraisal Report
shall mean the appraisal report on the Land and Buildings issued by China Credit
Information Service Ltd. on September 2, 2005; (b) with regard to the adjustment
of the insurance coverage, the Appraisal Report shall mean the appraisal report
on the Land and Building as of a later date issued by China Credit Information
Service Ltd. or other appraiser recognized by the Agent. Net Value shall mean
the net value after the deduction of the prevailing land inspection value and
depreciation as determined on the basis of the government posted current value,
from the appraised value of the objects described in the Appraisal Report.
1.22 Original Loan Agreements shall mean (i) the General Credit Agreement and
Respective Provisions Agreement between the Borrower and Chinatrust Commercial
Bank as well as the General Credit Agreement between the Borrower and Xx Xxxxx
Commercial Bank dated August 12, 2005;
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and (ii) the other agreements entered into by and between the Borrower and
Chinatrust Commercial Bank as well as the Borrower and Xx Xxxxx Commercial Bank
based on the credit agreements listed in (i). Original Facility shall mean the
facility arising out of the Original Loan Agreement.
1.23 Original Mortgage shall mean the first priority mortgage over the Land and
Buildings created by the Borrower in favor of Chinatrust Commercial Bank to
secure the Original Facility.
1.24 Assignment Agreement shall be as defined in Article 9.3 of this Agreement.
1.25 Note and Note Authorization shall be as defined in Article 8.1 of this
Agreement.
1.26 Guarantor shall mean the parent company of the Borrower in the United
States, which is a company organized and incorporated under the laws of the
State of Delaware, with address at 0000 Xxxxx Xxxxx Xxxx, Xxxxxxxx, XX 00000,
X.X.X.
1.27 Letter of Guarantee shall mean the Letter of Guarantee issued by the
Guarantor in such form and substance as specified in EXHIBIT 5 of this
Agreement.
1.28 Security Documents shall mean collectively the following and all documents
relevant to the following: Note, Note Authorization, Letter of Guarantee,
Mortgage Agreements, and Assignment Agreement.
1.29 Risk Sharing Ratio shall be as defined in Article 4.6.1 of this Agreement.
1.30 Event of Default shall mean an event listed in Article 10.1 of this
Agreement.
ARTICLE 2 FACILITY AMOUNT
2.1 Facility Amount and Purposes
The principal of the Total Facility Amount is [One Billion Eight Hundred and
Forty Million New Taiwan Dollars (NT$1,840,000,000)], for the purposes of
financing and refinancing the Borrower's Project.
2.2 Term of Facility, Period of Drawdown, and Terms of Repayment
2.2.1 The Facility under this Agreement is a term of five years from the date of
this Agreement.
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2.2.2 The Facility Amount may be drawn down by installments but not on a
revolving basis.
2.2.3 The Facility Amount shall be fully drawn down within six (6) months of the
execution of this Agreement, if not, any balance of the Facility Amount will be
automatically cancelled upon the expiration of such six-month period and may no
longer be drawn once cancelled.
2.2.4 The outstanding principal of the Facility shall be repaid and decrease by
ten equal repayment installments semi-annually from the last day of the sixth
month after the execution of this Agreement (such last day being the day of the
first installment). In the last installment all outstanding amount due and
payable shall be paid in full. The date of such repayment installment is
hereinafter called the "Repayment Installment Date". If such date does not fall
on a Business Day, the payment may be made on the next succeeding Business Day,
provided the schedule regarding the other prescribed Repayment Installment Dates
will not be affected.
2.2.5 The Borrower is responsible for making timely payment as necessary in
accordance with the Repayment Installment Dates and amounts prescribed in this
Agreement, to cause the outstanding amount of the Facility drawn down pursuant
to this Agreement, to be repaid and decrease by installments in accordance with
the provisions governing its repayment installments.
2.2.6 No Facility Amount which has been repaid and decreased in accordance with
the preceding provisions may be drawn anymore. The Facility Amount advanced by
each Bank shall be repaid, satisfied and accordingly decrease by a ratio of each
Bank's outstanding claims under the Facility which has been drawn, to the sum of
all the Banks' outstanding claims under the Facility which has been drawn (Risk
Sharing Ratio). The accounts Agent shall determine the distribution on the basis
of its own reasonable judgment, without objection from the Borrower and any of
the Banks, if it is technically impossible for the indebtedness to be repaid,
satisfied and decrease entirely by the above-cited ratio.
2.3 Drawdown
The Borrower shall draw down the Facility Amount to be advanced by each Bank,
based on the Commitment Ratio of each Bank, provided the Agent shall determine
the distribution portion of such drawdown amount for which the Borrower applies
on the basis of its own reasonable judgment, without objection from the Borrower
and any of the Banks, if it is technically impossible to draw down the Facility
Amount entirely by the above-cited ratio.
2.4 Repayment and Decrease, and Cancellation, of Facility Amount
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2.4.1 The Facility Amount under this Agreement shall be repaid and decrease, or
cancelled, in accordance with the applicable provisions of this Agreement.
2.4.2 Each Bank shall perform its relevant undertakings under this Agreement
based on its then valid Facility Amount and extend Loans to the Borrower
pursuant to the applicable provisions of this Agreement. Notwithstanding, a Bank
is not required to maintain or perform any undertaking under this Agreement if
it discovers prior to performing such undertaking that such maintenance or
performance will result in its violation of laws or regulations or if such Bank
is precluded by other applicable laws or regulations from maintaining or
performing the obligations under this Agreement (provided the Bank shall
immediately notify the Borrower and Agent). If the Bank discovers after
performing an undertaking that its maintenance of such undertaking constitutes
or will constitute a violation of law on its part, such Bank shall immediately
notify the Borrower and Agent with relevant documents sufficient to prove such
violation. The Borrower shall then make prepayment or try to relieve the Bank of
the relevant obligation(s) within sixty (60) Business Days of its receipt of the
notice from the Bank or a longer period permitted by laws and regulations for
cure. The Bank's Facility Amount shall immediately be cancelled or decrease to
the extent permitted by laws and regulations (no commitment fee is required for
any portion of the Facility Amount which the Borrower is precluded as a result
of the above from drawing, for the period of such preclusion). The Bank must
also make other arrangements for the Borrower for substitute financing under
terms comparable to those offered by this Agreement, if the violation of laws or
regulations mentioned above is attributable to the Bank. The Bank shall also
reimburse the Borrower for any additional funding costs (subject to relevant
supporting documents or evidence presented by the Borrower to substantiate its
claim of additional funding costs), if the Borrower needs to raise funds by
itself with costs higher than the financing costs under this Agreement as a
result of the Bank's failure to arrange for substitute financing in a timely
manner. However, the Bank shall still negotiate with the Borrower and to the
extent permissible by laws and regulations try as best as possible to arrange
for or assist the Borrower in obtaining other financing, if the above violation
of laws or regulations mentioned above is not attributable to the Bank, provided
neither the Agent nor the Bank is required to make any undertaking with respect
to whether such other financing may be procured or not.
2.4.3 No Facility Amount under this Agreement may be cancelled for convenience
absent the prior concurrence of all the Banks and the Borrower, unless otherwise
provided by this Agreement.
2.4.4 The Borrower may, on not less than thirty (30) days' prior written notice
to the Agent, request the Agent at any time prior to the Expiration Date of the
Drawdown Period to cancel in whole or in part the balance of the Facility
Amount, without premium or penalty, provided:
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2.4.4.1 the amount to be cancelled each time shall be in the minimum amount of
Two Hundred Million New Taiwan Dollars (NT$200,000,000), and the excess of Two
Hundred Million New Taiwan Dollars (NT$200,000,000) shall be a multiple of Fifty
Million New Taiwan Dollars (NT$50,000,000) (unless the then entire balance of
the Facility Amount is shy of Two Hundred Million New Taiwan Dollars
(NT$200,000,000), in which case such full balance must be cancelled);
2.4.4.2 the Facility Amount that is allowed to be cancelled must not have been
actually drawn; and
2.4.4.3 the Borrower shall pay an indemnity to each Bank in a lump sum at the
rate of 0.15% with respect to any portion of the Facility Amount which the
Borrower cancels in violation of the above provisions.
2.4.5 No Facility Amount may be drawn once cancelled pursuant to this Agreement.
The Facility Amount of each Bank shall decrease by its Commitment Ratio upon
cancellation, provided the Agent shall determine the distribution on the basis
of its own reasonable judgment, without objection from the Borrower and any of
the Banks, if it is technically impossible for the Facility Amount of each Bank
to decrease entirely by the above-cited ratio.
2.4.6 Unless otherwise provided by this Agreement, the Borrower may, on not less
than thirty (30) days' prior written notice to the Agent, prepay in whole or in
part the outstanding Facility Amount drawn (Outstanding Loan), without premium
or penalty, provided:
2.4.6.1 each prepayment shall be in the minimum amount of One Hundred Million
New Taiwan Dollars (NT$100,000,000), and the excess of One Hundred Million New
Taiwan Dollars (NT$100,000,000) shall be a multiple of Fifty Million New Taiwan
Dollars (NT$50,000,000) (unless the then entire outstanding Facility Amount is
shy of One Hundred Million New Taiwan Dollars (NT$100,000,000), in which case
such full outstanding amount must be prepaid);
2.4.6.2 prepayment may be made only on the Interest Payment Date;
2.4.6.3 prepayment must be made together with payment in full of all outstanding
interest and other sums associated with such prepayment which are then payable;
and
2.4.6.4 the Borrower shall bear all losses in fund operation and interest rate
differential as suffered by each Bank from the Borrower's prepayment (subject to
relevant supporting documents or evidence presented by each Bank to substantiate
its claim of losses and costs).
2.4.7 Prepayments of Loans shall be applied against repayment installments of
Loans in inverse order of maturity (i.e., in principle the last Loan to mature
shall be first prepaid).
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2.4.8 No Facility Amount may be reborrowed once prepaid pursuant to this
Agreement. The Facility Amount of each Bank shall decrease by a ratio of the
Bank's outstanding claims under the Facility which has been drawn, to the sum of
all the Banks' outstanding claims under the Facility which has been drawn (Risk
Sharing Ratio). Notwithstanding, the Agent shall determine the distribution on
the basis of its own reasonable judgment, without objection from the Borrower
and any of the Banks, if it is technically impossible for the Facility Amount of
each Bank to decrease entirely by the above-cited ratio.
ARTICLE 3 LOAN
3.1 Commitment
3.1.1 Subject to the Borrower having complied with the conditions precedent set
out in this Agreement, the Borrower may, within the Drawdown Period, draw a Loan
to the extent valid, in New Taiwan Dollars, pursuant to this Agreement.
3.1.2 The Facility Amount may be drawn down by installments within the Drawdown
Period, but not on a revolving basis.
3.1.3 Each Bank agrees to advance Loans under the Facility Amount to the
Borrower pursuant to this Agreement.
3.1.4 Unless otherwise agreed by the Agent, the amount to be drawn by the
Borrower each time shall be in the minimum amount of Two Hundred Million New
Taiwan Dollars (NT$200,000,000), and the excess of Two Hundred Million New
Taiwan Dollars (NT$200,000,000) shall be a multiple of Fifty Million New Taiwan
Dollars (NT$50,000,000), provided, however, that the amount to be drawn shall be
the then entire balance of the Facility Amount if the such balance is shy of the
minimum amount to the drawn, unless otherwise provided by the Agreement.
3.2 Drawdowns
3.2.1 Subject to the Borrower having totally complied with or performed the
conditions precedent to drawdown as set out in this Agreement, the Borrower may
at any time request, in the form of EXHIBIT 1 hereto ("Drawdown Request"), a
drawdown of a Loan hereunder from the Agent, in accordance with the terms and
conditions and also schedule set out in this Agreement, unless otherwise
provided by the Agreement. Each Bank shall, to the extent of its Facility
Xxxxxx,
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advance payment to the Borrower by its Commitment Ratio, in the event of a
request for drawdown by the Borrower, provided its obligation to advance Loans
hereunder is contingent upon none of the following circumstances having occurred
to the request for drawdown: (a) the time or duration of the drawdown does not
conform to this Agreement; (b) the drawdown is in an amount which would cause
the Loans outstanding under the Facility to exceed the then valid Total Facility
Amount, or the advances outstanding hereunder of each Bank to exceed its
Facility Amount; (c) the amount of the drawdown will exceed the secured debt
value or commitment restriction prescribed by this Agreement; (d) the drawdown
otherwise does not conform to the other requirements provided for in Article 6
of this Agreement.
3.2.2 Provided that the conditions described above have been met with respect to
the requested drawdown, the Agent shall immediately accept the Drawdown Request
of the Borrower on behalf of the Banks. Each Drawdown Request, once accepted by
the Agent, shall be irrevocable and binding on the Borrower. The Borrower shall
reimburse the Banks, at any time upon the Agent's demand, for any costs and
losses incurred by the Banks in the event that the Borrower subsequently fails
to continue to maintain the relevant conditions precedent to its drawdown or
satisfy other conditions precedent to such drawdown to the extent that the
amount of drawdown it has requested cannot be advanced in whole or in part
(subject to relevant calculations or documentary evidence presented by the
Bank(s) claiming such losses and costs).
3.2.3 Upon its receipt of a Drawdown Request from the Borrower, the Agent shall
request each Bank by a written notice at least one Business Day prior to the
Drawdown Date specified in the Drawdown Request, to advance payment according to
the Agent's distribution, stating the date on which each Bank is to make
available its Loan and the amount to be advanced by each Bank pursuant to the
Drawdown Request. Each Bank shall, pursuant to such notice and this Agreement,
make available its advance in immediately available funds not later than 12 a.m.
on the Drawdown Date specified in the Drawdown Request, to the account
designated by the Agent. The Agent supposedly may assume that each Bank is
capable of advancing payment pursuant to the Agreement and, on the basis of such
assumption, may further, but is not obligated to, make available the funds to
the Borrower on schedule, unless the Agent has received a written notice from
any of the Banks prior to the Drawdown Date stating that the Bank is unable to
advance the Loan by its Commitment Ratio. Notwithstanding, the Agent is under no
obligation to make available or advance any sum to the Borrower on behalf of the
Banks, until the Agent actually receives the payment made available by the Banks
pursuant to the Agreement. If the Agent makes available to the Borrower the
amount of any advance to be made by any Bank which such Bank fails to make
available to the Agent pursuant to the Agreement, the Borrower shall at any time
upon the Agent's demand refund such amount to the Agent together with daily
interest at the highest overnight loan rate posted on Reuters' PIBC page after
the close of business each day, for the period from the Drawdown Date to the
date of the Agent's actual receipt of the refund.
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3.2.4 Failure by any Bank to make available its advances pursuant to the
Agreement shall not relieve the other Banks of their undertakings to make
advances pursuant to the Agreement and shall not relieve the Borrower of its
obligations under this Agreement, but, in no event, no other Bank or the Agent
shall be liable for the default of the defaulting Bank. Any Bank which fails to
make Borrower to substantiate its claim of losses and costs). The Borrower is
not required to pay any commitment fee with respect to the amount not yet drawn
as a result of any Bank's failure to make available funds pursuant to the
Agreement.
ARTICLE 4 FEES, TERMS OF PAYMENT AND GUARANTEE OF PROCEEDS
4.1 Commitment Fee
4.1.1 A commitment fee of 0.2% per annum is payable to each Bank on the actual
undrawn amount each day from the date of this Agreement to the Expiration Date
of the Drawdown Period, calculated on the basis of a year of Three Hundred
Sixty-Five (365) days and actual number of days elapsed. The Borrower shall pay
such fee in a lump sum on the Expiration Date of the Drawdown Period, in the
form of immediately available funds in New Taiwan Dollars, to the Agent, for
distribution and forwarding by the Agent to the Banks pursuant to the applicable
provisions of this Agreement.
4.1.2 The business tax and stamp duty arising out of the above commitment fee
shall be borne by the Banks.
4.2 Loan Interest
4.2.1 The Borrower shall, on each Interest Payment Date, pay the Agent interest
at the applicable Interest Rate, calculated on the basis of a year of Three
Hundred Sixty-Five (365) days and actual number of days elapsed, on the then
outstanding principal amount of each Loan extended by each Bank. The Borrower
shall still pay the principal together with the relevant interest in full even
if the date the Borrower repays the principal pursuant to the Agreement
(Repayment Installment Date) is not an Interest Payment Date. The Agent will
notify each Bank and the Borrower of the Interest Rate of a Loan on the date
each Loan is drawn down and thereafter upon the commencement of each Interest
Period, after consulting the relevant units. If there is any variation of the
Reference Interest Rate, the Interest Rate will not be adjusted until the
commencement date of the next Interest Period.
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4.2.2 The Borrower shall pay interest on schedule for each Interest Period from
the Initial Drawdown Date. The last day of each Interest Period shall be the
Interest Payment Date. The Agent will calculate interest at the applicable
Interest Rate by the actual duration of the Loan and notify the Borrower of such
interest. The Borrower shall pay interest to the Agent in immediately available
funds in New Taiwan Dollars on each Interest Payment Date, for distribution and
forwarding by the Agent to the Banks pursuant to the applicable provisions of
this Agreement.
4.2.3 The business tax and stamp duty arising out of the above interest shall be
borne by the Borrower.
4.2.4 The Borrower hereby agrees enterprises engaged in banking are still
required by the applicable provisions of the Value-Added and Non-Value-Added
Business Tax Law to allocate 3% of their sales for writing off overdue loans or
setting aside allowances for bad debts, notwithstanding the prescription by such
law of a 2% business tax rate for the bank industry. Thus, the business tax
which the Borrower shall bear pursuant to this Agreement remains payable at the
rate of 5%. In the event of a change to the business tax rate in the future, the
new rate shall apply, provided the portion associated with the required
allowances for bad debts shall still be borne by the Borrower as long as the
requirement for such allowances to be set aside by enterprises engaged in
banking exists.
4.3 Other Payments
The Borrower shall pay the Coordinating Arrangers and Agent all fees associated
with the Coordinating Arrangers' formation of the Banks and the Agent's
management of all affairs pertaining to this Agreement. The contents will be
determined through agreement by the Borrower with the Coordinating Arrangers and
Agent.
4.4 Terms of Payment and Compensatory Interest
4.4.1 The Borrower shall pay, pursuant to the applicable provisions of this
Agreement, all sums which it is required by this Agreement or related documents
to pay, in immediately available funds in New Taiwan Dollars, before 12 noon on
the due date, according to the type and nature of its indebtedness, such as
principal, interest or fee. All interest rates or rates under this Agreement
will be rounded up to the nearest fourth decimal, and interests or fees will be
rounded up to the New Taiwan Dollar.
4.4.2 If the Borrower or Guarantor makes payment in a currency other than New
Taiwan Dollars or (for whatever reason) the repayment actually received by the
Agent or Banks is in a currency other than New Taiwan Dollars, the
above-mentioned payment or repayment will not be deemed paid pursuant to the
Agreement and will not relieve the Borrower or Guarantor of its liability unless
such
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other currency has been fully converted into New Taiwan Dollars and the
converted New Taiwan Dollars have been remitted to the account or place
designated by the Agent; the Borrower or Guarantor shall further assume the
relevant foreign exchange risk. The Borrower or Guarantor shall also be
responsible for securing in a timely fashion all approvals, including foreign
exchange approvals, necessary for making all relevant payments in New Taiwan
Dollars, and shall make no defense based on its default on payment pursuant to
the Agreement due to its failure to secure the relevant approvals. If the Agent
or a Bank is required to calculate its claims in a currency other than New
Taiwan Dollars for the purposes of exercising its rights, the Borrower or
Guarantor shall be responsible for any shortfall and the Agent, and the Bank are
further entitled to claim against the Borrower or Guarantor, if the amount after
conversion into New Taiwan dollars is actually shy of the amount payable to the
Agent or Bank.
4.4.3 Any sum payable may be paid on the next succeeding Business Day if the due
date thereof is not a Business Day, unless such next succeeding Business Day
falls in another calendar month, in which case the payment shall be made on the
immediately preceding Business Day (and interest payable on such sum if such sum
is principal, will be payable for the actual number of days elapsed).
4.4.4 If any of the above payments is not paid on schedule when payable, the
Borrower shall make immediate payment pursuant to the Agreement along with
interest to each Bank and/or the Agent at the Compensatory Interest Rate,
calculated on the basis of a year of Three Hundred Sixty-Five (365) days and
actual number of days elapsed, on the outstanding sum, for the period from the
due date to the date of actual receipt by each Bank and/or the Agent of the
payment. However, if the outstanding sum is interest, the default interest will
be 10% and 20% of the sum overdue for not more than six (6) months and in excess
of six (6) months respectively. The Agent may determine the amount of such
payment based on its calculation from time to time and notify the determined
amount to the Borrower. Within three (3) days after receiving the
above-mentioned notice from the Agent, the Borrower shall immediately make the
payment to the Agent for forwarding by the Agent to the Banks pursuant to the
applicable provisions of this Agreement.
4.4.5 Unless otherwise provided by this Agreement, no other payment payable by
the Borrower under this Agreement will carry the effect of repayment unless paid
by the Agent to each Bank in accordance with this Agreement or other relevant
contracts. The Agent shall distribute and forward the above payments to each
Bank upon its receipt of such payments, save payments to be collected solely by
the Coordinating Arrangers or the Agent, provided each Bank shall issue a
receipt or proof and directly send the same to the Borrower with respect to each
payment collected by the Bank.
4.5 Cost Increase, Taxes and Change of Law
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4.5.1 In the event a change in laws or regulations or in the interpretation of
laws or regulations by the competent authority, or a direction or requirement of
the competent authority, results in: (a) a change in the rate or tax base of the
taxes payable by the Banks on the transaction contemplated under this Agreement
or on the payments payable by the Borrower to the Banks pursuant to this
Agreement (except changes in the mandatory tax rate imposed on the net income of
the Banks by the R.O.C. government or the jurisdiction of the incorporation of
the Banks); (b) an increase or change in the Facility, or an application of any
reserve, special deposit or similar regulations to the Facility; or (c) an
increase in the costs for the Banks or Agent to perform or maintain
undertakings, or a decease in the amounts otherwise receivable by the Banks or
Agent under this Agreement, to the extent that the Majority Banks or Agent deems
material, then the Borrower shall, upon demand by the Banks or Agent, pay within
ten (10) days or before the deadline mutually agreed by the Agent and the
Borrower, the additional sums to the Banks or Agent as indemnity for the
increase in costs or decease in revenue to the Banks or Agent. The impact of the
above change of law shall be based upon relevant documentary evidence presented
by the affected Bank(s) or Agent of the increase in costs or decrease in
revenue. Notwithstanding the above, the Borrower may, on not less than fifteen
(15) days' prior written notice to the Agent, prepay in whole (but not in part)
the outstanding Facility Amount drawn (outstanding Loan) and is not subject to
fees, penalties or any obligations under Article 2.4.6 (a), and (b), but is
still subject to Article 2.4.6 (d) if the Borrower prepays the outstanding
Facility Amount drawn without giving no less than thirty (30) days' prior
written notice.
4.5.2 The Borrower shall neither make any withholdings or deductions off any
payment which it pays pursuant to this Agreement, nor offset any payment which
it pays pursuant to this Agreement against the indebtedness to any Bank. In
addition to taxes which the Banks or Agent is required by the above provision to
bear, if the Borrower shall be required by law to make any such withholding from
any payment under this Agreement, the sum payable by the Borrower shall be
increased so that after all required withholdings, including additional
withholdings in response to the increase in the sum paid under this
subparagraph, the Banks and Agent receive an amount equal to the sum they would
have received had no such withholdings been made.
4.5.3 All other present and future taxes and fees payable or incurred from the
execution or registration of this Agreement, Security Documents or other related
documents shall be borne by the Borrower, unless otherwise expressly provided by
this Agreement. If the Banks or Agent pays such taxes on the Borrower's behalf,
the Borrower shall reimburse the exact amount within ten (10) days or before the
deadline mutually agreed by the Agent and the Borrower after receipt of
notification, or it shall pay interest at the Compensatory Interest Rate for the
period from the date the Banks or Agent gives the above-mentioned notification
to the Borrower to the date the Borrower actually pays full reimbursement.
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4.6 Application of Payments
4.6.1 Any sums received by the Agent from its exercise of rights pursuant to
this Agreement, Letter of guarantee, Mortgage Agreements, Security Documents and
all other associated documents shall be applied in the following order of
priority: (a) first, to all expenses and fees, including a facility fee payable
to the Agent, incurred by the Agent from its exercise of rights pursuant to this
Agreement, Letter of guarantee, Mortgage Agreements, Security Documents and all
other associated documents, which expenses and fees have been reimbursed by
neither the Borrower nor any Bank; (b) then to all outstanding fees and
interests, including interests or default interests to be calculated at the
Compensatory Interest Rate, payable by the Borrower to the Agent and the Banks
under this Agreement; (c) then to distribution to each Bank pursuant to the
applicable provisions of this Agreement (or to the decision of the Agent in the
absence of an express agreement), by the Agent on the basis of the nature of
each sum received, by a ratio of each Bank's outstanding claims under the
Facility which has been drawn, to the sum of all the Banks' outstanding claims
under the Facility which has been drawn (Risk Sharing Ratio).
4.6.2 Unless otherwise provided by this Agreement, the Agent shall forward to
the Banks pursuant to the Agreement all sums received from the Borrower that
shall be forwarded to the Banks, upon actual receipt of such sums, for the Banks
to apply towards the indebtedness due from the Borrower to the Banks in the
order of priority prescribed by this Agreement or laws and regulations. In the
event that the sums mentioned above are insufficient to pay all sums in a
specific category to the relevant Banks in the same order of priority, the Agent
shall distribute such sums to each Banks pro-rata to the claims to which each
Bank is entitled under such category (Risk Sharing Ratio).
4.7 Facility Records
The Agent shall maintain records relevant to the Facility, documenting the
drawdowns of the Facility Amount by the Borrower and the payments made by the
Borrower and Guarantor to each of the Banks. Details of the outstanding sums due
from the Borrower under this Agreement shall be as documented in the Agent's
records above, unless the Borrower can present specific evidence of manifest
errors in such records. Whether the records are compiled by the computer or
manually, unless the contents are wrong and must be corrected, the Borrower
agrees to acknowledge the entire contents of the records. The Borrower further
agrees to issue a new negotiable instrument or certificate of claims to the
Agent according to the Agent's records if any negotiable instrument or other
certificate of claims provided by the Borrower to the Agent pursuant to the
Agreement is lost, damaged or destroyed. The Borrower shall further lend its
unconditional support at all times in the event the Agent is required by laws or
regulations to report loss and proceed with other relevant formalities due to
the loss, damage or destruction of any negotiable instrument or other
certificate of claims.
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ARTICLE 5 INTERESTED PARTIES
5.1 Several Obligations of the Banks
The relevant obligations of the Banks under this Agreement are all independent
and several of one another. Each Bank shall perform its own undertaking to
extend facilities in accordance with this Agreement. No action or inaction on
the part of any Bank will result in any right or obligation on the part of
another Bank. The Banks are not jointly liable with one another for the
obligations under this Agreement.
5.2 Joint and Several Claims of the Banks
5.2.1 All claims of a Bank and the Agent under this Agreement and the relevant
contracts against the Borrower, Guarantor and relevant obligors are joint and
several claims under Article 283 of the Civil Code, notwithstanding the several
and independent obligations of the Banks to perform their respective
undertakings to the Borrower pursuant to this Agreement to the extent of their
respective Facility Amounts. Any of the Banks and the Agent are entitled by law
to claim performance in whole or in part of the above claims against the
Borrower, Guarantor and relevant obligors, provided all the Banks and the Agent
agree to share their rights and interests and exercise their rights under this
Agreement, in accordance with the applicable provisions of this Agreement. (In
other words, except in their exercise of the right to set-off under this
Agreement, no Bank may take any action with respect to any matter under this
Agreement absent the written concurrence of the Majority Banks, or perform any
action or inaction that conflicts or is inconsistent with the decisions of the
Majority Banks.)
5.2.2 The Borrower, Banks and Agent all agree that the Agent shall be payee of
the Notes issued by the Borrower pursuant to this Agreement, and also the
mortgagee, assignee or security right holder entitled to hold, control, manage
and exercise in the capacity of a joint and several creditor pursuant to this
Agreement, the Mortgage Rights, Assignment Agreement, Letter of Guarantee and
other warranties provided by the Borrower pursuant to this Agreement, and to
further share the above interests with the Banks in accordance with this
Agreement in the Agent's capacity of a joint and several creditor.
5.2.3 Each of the Banks and the Agent shall, pursuant to this Agreement, share
the risks as well as the security interests under the Facility by the Risk
Sharing Ratio applicable to each Bank.
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ARTICLE 6 CONDITIONS PRECEDENT TO DRAWDOWN
6.1 Initial Drawdown
The Borrower's initial drawdown of the Facility Amount under this Agreement is
subject to the conditions precedent that at least seven (7) Business Days prior
to the requested date for such drawdown the Agent shall have received all of the
following documents in form and substance satisfactory to the Agent:
6.1.1 Evidence, including, without limitation, resolutions and minutes of board
of directors' meetings that the Borrower has completed all necessary internal
corporate acts and is authorized to enter into, deliver and perform this
Agreement, the Security Documents and other associated contracts or documents;
and evidence that the person signing this Agreement, the Security Documents and
other associated contracts or documents on behalf of the Borrower has been duly
authorized by the Borrower;
6.1.2 The Borrower's Articles of Incorporation, business license and amended
incorporation registration form, including roster of directors and supervisors;
6.1.3 Letter of guarantee issued by the Guarantor in form and substance
consistent with EXHIBIT 5 of this Agreement;
6.1.4 The Guarantor's incorporation registration documents and resolutions and
minutes of board of directors' meetings, that the Guarantor has completed all
necessary corporate acts and is authorized to enter into, deliver and perform
the Letter of guarantee and evidence that the person signing the Letter of
guarantee on behalf of the Guarantor has been duly authorized by the Guarantor;
6.1.5 Evidence that the Guarantor has designated a service agent in accordance
with the Letter of Guarantee.
6.1.6 Evidence that the Guarantor and other shareholder of the Borrower has
increased its cash investment in the Borrower by not less than Two Hundred
Million New Taiwan Dollars (NT$200,000,000) and caused the Borrower to complete
capital increase by cash, raising the Borrower's paid-in capital to Seven
Billion One Hundred Eighty-Nine Million Three Hundred and Eight Thousand Four
Hundred and Ninety New Taiwan Dollars (NT$5,389,308,490);
6.1.7 Assignment Agreement duly executed by the Borrower in accordance with this
Agreement;
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6.1.8 Note and Note Authorization issued by the Borrower in accordance with this
Agreement;
6.1.9 Favorable written legal opinions of the Banks' counsel on legal matters
relevant to the Facility under the laws of the Republic of China, New York State
and Delaware State; and
6.2 Each Drawdown
With respect to each drawdown, including the initial drawdown, of the Facility
Amount by the Borrower, the obligations of the Banks to perform their
undertakings pursuant to this Agreement are subject to the following conditions
precedent (photocopies presented must have been certified by the document
provider as true, accurate and complete copies):
6.2.1 The Agent shall have received the following documents at least five (5)
Business Days prior to the requested date for each drawdown by the Borrower (or
seven (7) Business Days prior to the requested date for initial drawdown):
6.2.1.1 The Drawdown Request submitted by the Borrower in accordance with this
Agreement;
6.2.1.2 The Borrower shall submit the following if it desires to draw the
Facility Amount with the Land and Buildings as collateral:
6.2.1.2.1 Appraisal Report obtained by the Borrower with respect to the Land and
Buildings;
6.2.1.2.2 Evidence that with respect to the Original Mortgage over the Land and
Buildings, the Borrower has entered into a Real Estate Mortgage Agreement (and
Supplement) in the form and content indicated in EXHIBIT 6 hereto with
Chinatrust Commercial Bank as well as duly executed other relevant documents
required by the Agent, and has completed the registration of the amendments to
the mortgage registration amount, security scope, and valid term in connection
with the mortgage over the Land and Buildings pursuant to the above-mentioned
Real Estate Mortgage Agreement (and Supplement) and relevant documents.
6.2.1.2.3 Evidence that the amount of drawdown requested by the Borrower is not
less than the outstanding amount of the Original Facility and such drawdown will
first be used to fully repay the outstanding amount of the Original Facility.
6.2.1.2.3 Evidence that the Borrower has, with respect to the Factory Buildings,
duly arranged insurances pursuant to this Agreement (the insured amount and
coverage shall conform to this Agreement); assigned all rights and interests in
the insurances to the Agent pursuant to the
19
Assignment Agreement, naming the Agent as the loss payee of such insurances on a
priority basis; and obtained the relevant undertakings from the insurance
company and delivered the same to the Agent.
6.2.1.3 The Borrower shall submit the following if it desires to draw the
Facility Amount with the Equipment as collateral:
6.2.1.3.1 Evidence of drawdown of the particular Loan to obtain funds for
financing the Borrower's purchase of the Equipment, including invoices, details
of the equipment, import declaration, auditor's report issued by a CPA, or other
relevant supporting documents demanded or recognized by the Agent, collectively
called "Evidence of Drawdown"), which evidence is dated not more than twelve
(12) months of the requested Drawdown Date;
6.2.1.3.2 Evidence that the Equipment has been installed and the Borrower has,
pursuant to the applicable provisions of this Agreement, duly executed a Chattel
Mortgage Agreement and created a first priority Chattel Mortgage capped at 145%
of the amount drawn on such occasion in favor of the Agent with respect to the
Equipment; and
6.2.1.3.3 Evidence that the Borrower has, with respect to the Equipment, duly
arranged insurances pursuant to this Agreement (the insured amount and coverage
shall conform to this Agreement); assigned all rights and interests in the
insurances to the Agent pursuant to the Assignment Agreement, naming the Agent
as the sole loss payee of such insurances on a priority basis; and obtained the
relevant undertakings from the insurance company and delivered the same to the
Agent.
6.2.2 Up until each Drawdown Date, (a) no Event of Default described in this
Agreement or no possible Event of Default due to a lapse of time has occurred;
(b) the representations and warranties made by the Borrower in this Agreement
are all true and accurate; (c) the Borrower has fully paid all costs and sums
required by this Agreement to be paid by the Borrower to each Bank; and (d) no
event entitling the Banks to disrupt funding under the Facility Amount pursuant
to this Agreement has occurred.
6.3 Restrictions on Commitment
The amount of Loan which the Borrower is to actually draw shall be limited as
follows ("Secured Debt Value"):
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6.3.1 The amount of Loan to be drawn by the Borrower with the Equipment as
collateral is capped at 70% of the purchase price of the Equipment as specified
on the Evidence of Drawdown after depreciation. For the purpose of such
calculation:
DEPRECIATION = PURCHASE PRICE SPECIFIED ON THE EVIDENCE OF DRAWDOWN
DIVIDED BY 5 (YEARS) X
NUMBER OF MONTHS FROM THE DATE OF THE EVIDENCE OF DRAWDOWN TO THE DRAWDOWN DATE
6.3.2 The amount of Loan to be drawn by the Borrower with the Land and Buildings
as collateral is capped at 70% of the Net Value.
6.3.3 The entire Loan amount to be drawn by the Borrower is capped at the sum of
the amounts in Articles 6.3.1 and 6.3.2.
6.3.4 Any conversion of currencies involved in the calculation of the amounts
above shall be made on the basis of the exchange rate specified in the relevant
import declaration.
ARTICLE 7 BORROWER'S REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants as follows:
7.1 The Borrower is a duly incorporated and legally existing company under the
laws of the Republic of China with all lawful power and authority to own its
assets and conduct its business.
7.2 The Borrower has obtained all necessary authorizations in accordance with
the company's internal procedure to execute, deliver and perform this Agreement,
the Mortgage Agreements, Security Documents and all other documents relevant to
this Agreement.
7.3 The execution, delivery and performance by the Borrower of this Agreement,
the Mortgage Agreements, Security Documents and all other relevant documents do
not violate any law or regulation, the Articles of Incorporation or other
internal rules of the Borrower, have no material adverse effect on the
obligations of the Borrower under any other material contract, and do not result
in a breach by the Borrower of any other material contract.
7.4 This Agreement, the Mortgage Agreements, Security Documents and all other
documents relevant to this Agreement constitute legal, valid and binding
obligations of the Borrower.
7.5 All Mortgaged Objects are legally registered properties of the Borrower. The
Borrower is entitled and empowered to dispose of such properties. Ownership of
any building or work structure within the Mortgaged Objects which has not been
registered ("Unregistered Building") is also vested in the Borrower. The above
objects are currently being used by the Borrower, without being leased
21
to others. Except to the Original Mortgage (the outstanding loan secured by the
Original Mortgage shall be fully repaid after the Borrower requests the drawdown
secured by the Land and Buildings) and unless otherwise agreed in this
Agreement, neither the Land and Buildings nor the Equipment are subject to any
lien in favor of another person, nor has the Borrower undertaken to another
person to create any security interest or charge over, or otherwise disposed of,
the Land and Buildings or the Equipment.
7.6 The Borrower has procured all approvals, permits, licenses required for the
operation of its current business and implementation of the Project pursuant to
the applicable laws and regulations, including, without limitation, approvals,
permits, licenses in connection with environmental protection, pollution
control, treatment of waste etc. Such approvals, permits, licenses all continue
to be in force and effect. Nothing occurs with respect to the Borrower which may
result in a revocation of the above approvals, permits, licenses by the
competent authority which will cause an adverse effect on the business and
financial condition of the Borrower.
7.7 All statements and information in connection with the Facility, Borrower,
Equipment, major shareholders of the Borrower, as contained in the Syndicated
Loan Statement ("Statement") furnished by the Borrower to the Coordinating
Arrangers with respect to the Facility, a copy of which was forwarded by the
Coordinating Arrangers to each Bank in September 2005, and other reporting
information provided by the Borrower before the execution of this Agreement
appropriately reflect the Borrower's condition. The Borrower has not omitted any
material fact necessary to make the statements contained herein, when taken as a
whole misleading. Notwithstanding, the Borrower's financial projections and
explanations, current market condition and prospects, and all relevant opinions
are compiled on the basis of facts understood by the Borrower and reasonable
judgment of the Borrower. Therefore, the actual results therefrom may be
different from the proposed results. The representations and warranties made by
the Borrower under this Article 7.7 are true and correct as of the date of this
Agreement.
7.8 Except as disclosed in the financial statements or otherwise in writing by
the Borrower to each Bank, there is no suit, non-litigious proceeding,
arbitration, enforcement, administrative dispute proceeding or other contention
involving the Borrower which is reasonably expected to have or will have a
material adverse effect on the Borrower or the Facility or may impair the
exercise or performance of any relevant rights or obligations under this
Agreement by the Borrower.
7.9 There is no Event of Default by the Borrower and neither this Agreement nor
the Facility will result in a possible Event of Default to the Borrower and it
is not in default of any other contract where such default may have a material
adverse effect on the Facility or the business or financial condition of the
Borrower.
22
7.10 There is no petition by or against the Borrower for windup, dissolution and
liquidation, bankruptcy, corporation reorganization, relief or other similar
legal proceeding; nor is any of the above-mentioned proceedings underway or
pending with respect to the Borrower.
7.11 Unless otherwise expounded by the Borrower in the financial statements
furnished to the Agent, or otherwise advised by the Borrower to the Banks and
Agent in writing prior to the execution of this Agreement, the claims of each
Bank against the Borrower under this Agreement rank at least pari passu in
priority of payment with all unpreferred or unsecured claims of any other person
against the Borrower (except for claims mandatory preferred by law); provided,
that the Agent in its capacity of a joint and several creditor and acting for
the benefits of the Banks shall, at all times, from and after registration of
the Mortgages contemplated by this Agreement, have a first priority security
interest over the Land and Buildings and Equipment.
7.12 The CPA audited financial statements of the Borrower as at and for the
period ended December 31, 2004 and the financial statements prepared by the
Borrower but not audited by the CPA as at and for the period ended September 30,
2005, copies of which have been delivered to the Agent and each Bank, are
correct in all material respects and have been prepared in accordance with
generally accepted R.O.C. accounting principles and fairly present the financial
condition and operations of the Borrower as of the date thereof and for the
period then ended all in accordance with generally accepted R.O.C. accounting
principles consistently applied. There are no material liabilities of the
Borrower as of the date of such financial statements that are not reflected
therein or in the notes thereto, except as otherwise disclosed by the Borrower
to the Banks and the Agent in writing. The representations and warranties made
by the Borrower under this Article 7.12 are true and correct as of the date of
this Agreement.
ARTICLE 8 BORROWER'S UNDERTAKINGS
In addition to other undertakings made by the Borrower under this Agreement, the
Borrower undertakes and agrees that as of the date of this Agreement and until
such time that each and all of its liabilities and obligations under this
Agreement, the Security Documents, and all other relevant agreements and
documents have been fully discharged and performed, it shall duly perform the
following obligations:
8.1 Upon executing this Agreement and prior to the initial Drawdown, the
Borrower shall issue a Note stipulating the Agent as the beneficiary and the
Total Facility Amount as the face value, with the expiry date being left blank
(the format and contents shall be as set out in EXHIBIT 2, hereafter the
23
"Note"). The Borrower shall also issue a note authorization (the format and
contents shall be as set out in EXHIBIT 3, hereafter the "Note Authorization").
The Note and the Note Authorization shall be delivered to the Agent for
safekeeping, and the Borrower unconditionally and irrevocably authorizes the
Agent to insert the expiry date, interest rate (being the Compensatory Interest
Rate) and the commencement date of the interest period in accordance with
relevant provisions of this Agreement in the event of the occurrence of an Event
of Default, and to exercise all rights under the Note. As of the Note issue
date, a new Note shall be issued in the same format and with the same contents
but the face amount of the such new Note may be decreased to the amount
equivalent to the Outstanding Loan at least once every two (2) years. The Agent
and the Banks agree that the said Note and the Note Authorization shall be
immediately and unconditionally returned to the Borrower when the Borrower has
discharged all relevant liabilities under this Agreement and other relevant
agreements.
8.2 The Borrower shall at all times: (a) maintain the existence, nature of
business and scope of business of its company or other reasonable extended
business within the scope of this Agreement, and maintain approvals, licenses
and permits required to be obtained and maintained for the purposes of operating
the said business and performing matters stipulated in this Agreement on a
timely basis except where the Borrower's failure to maintain such approvals,
licenses, and permits would not have adverse effects on the business or
financial condition of the Borrower; (b) comply with all laws, regulations and
requirements issued by all government authorities with jurisdiction over such
matters (including but not limited to requirements relating to environmental
protection, pollution prevention and disposal of waste products) except where
the Borrower's failure to comply with laws, regulations and requirements would
not have adverse effects on the business or financial condition of the Borrower;
(c) prepare and keep appropriate accounting records; and (d) make timely
payments of all taxes and regulatory fees payable in relation to the Borrower's
company income or assets, except where such payments are contested by the
Borrower though administrative remedy procedures in accordance with relevant
laws and regulations and prepare sufficient reserves pursuant to the ROC GAAP;
and (e) use its reasonable efforts to maintain the Project and all related
facilities at all times.
8.3 The Borrower shall ensure at all times that its liabilities under this
Agreement and the Security Documents shall enjoy at least the same claims
ranking as any other unsecured liabilities of the Borrower (except those
liabilities that enjoy a higher claims ranking according to law). In addition,
after the Borrower has duly registered the relevant Mortgages in respect of the
Mortgaged Objects or assigned the relevant rights or interests in accordance
with the various Security Documents, the Agent (in its capacity of a joint and
several creditor for the common interest of all Banks) shall enjoy a priority
right of claim in respect of the said objects in accordance with this Agreement,
and the Agent may share such interests with each Bank in accordance with the
provisions of this Agreement.
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8.4 The Borrower shall grant a Mortgage over the Land and Buildings and the
Equipment in favor of the Agent in accordance with relevant provisions of this
Agreement, and shall assign the relevant rights and benefits of insurance claims
over such Mortgaged Objects to the Agent in accordance with the Assignment
Agreement. The Borrower shall also ensure that the said warranted rights are in
compliance with the requirements of this Agreement at all times during the valid
period of this Agreement. In order to ensure the completeness and validity of
the said warranted rights, the Borrower shall execute all other necessary
documents and perform all other necessary acts that should be issued according
to law or generally applicable customs of the banking industry from time to
time, upon the reasonable request of the Agent.
8.5 In the event of any of the following, the Borrower shall promptly notify the
Agent in writing and explain the measures that it has adopted (which shall not
affect any rights that the Agent or a Bank may exercise under this Agreement):
(a) A dispute arises in relation to the Land and Buildings or the Equipment; (b)
A license or approval obtained by the Borrower and necessary for the Project or
its business operations has expired or is cancelled; (c) There is a substantive
material change to the business, operations, management, personnel structure,
finances or principal assets of the Borrower; (d) The Borrower has newly
incurred any mid- or long-term liabilities, except shareholder loans granted by
the Guarantor, in excess of the amount of Two Hundred Million New Taiwan Dollars
(NTD200,000,000) or the equivalent in any foreign currency; (e) The Borrower is
involved in any currently pending litigious or non-litigious action,
arbitration, compulsory execution, judicial or administrative investigation,
dispute or any other similar proceedings to be heard by a court, arbitration
tribunal, taxation authority or any other governmental authority, and the
monetary amount of its involvement is Two Hundred Million New Taiwan Dollars
(NTD200,000,000) or more, or the equivalent in any foreign currency; (f) An
insurance event occurs in respect of a Mortgaged Object; or (g) An Event of
Default occurs.
8.6 During the valid period of this Facility and until such time that the
Borrower has completely discharged all liabilities occurring under this
Agreement, the Borrower may not engage in any of the following acts except with
the prior written consent of the Majority Banks: (a) Sell, assign, lend, lease,
remove, reconstruct, encumber, mortgage or in any other way dispose of all or
part of the Mortgaged Objects (irrespective of whether such mortgages have been
duly registered) (this does not apply to an act under Article 9.2.5 of this
Agreement), or engage in any other act that will reduce the value of the
Mortgaged Objects, or remove the Mortgaged Objects to a location other than that
stipulated in the Chattel Mortgage Agreement; (b) Make a material change to its
principal business items or nature of business; (c) Merge with another entity
(this does not apply where the Borrower is the subsisting company, and the
merger has been determined by the Majority Banks as having no detrimental effect
on the finances and business of the Borrower), or conduct a spin-off over the
company; (d) Sell, lease or in any other way assign or dispose of the Mortgaged
Objects, including the collateral for substitution of the Mortgage Objects
pursuant to this Agreement ; (e) Become
25
directly or indirectly responsible for the liabilities of another person by
means of accepting the said liabilities, issue a guarantee or endorsement or by
any other means, or lend the funds of the company to others, provided that this
does not apply to the loans, guarantees or endorsements provided by the Borrower
to the Guarantor or the Guarantor's subsidiaries.
8.7 Upon the advance written notice and reasonable request of the Agent from
time to time and provided that it does not interfere with normal operations of
the Borrower, the Borrower shall permit the representatives or agents of the
Agent and the Banks to enter the relevant premises of the Borrower for the
purposes of inspecting the various Mortgaged Objects, or reviewing or making
records of extracts of various accounts, records or documents that are relevant
to the Borrower's ability to perform its obligations under this Agreement, the
Security Documents or other relevant agreements.
8.8 Until such time that the Borrower has discharged all of its liabilities
under this Agreement, it shall adhere to the following financial standards at
all times (based on the Borrower's own unaudited and uncertified half-yearly
financial statements, and the annual financial statements duly audited and
certified by an account; the standards shall be verified at least once every six
(6) months, and shall be verified whenever the Agent deems necessary):
(a) The liquidity ratio (liquid assets divided by liquid liabilities) shall not
be less than 80%. For the purposes of calculating this ratio:
(i) CURRENT RATIO = CURRENT ASSETS DIVIDED BY (CURRENT LIABILITIES -
RELATED PARTY TRANSACTIONS)
(ii) "RELATED PARTY TRANSACTIONS" SHALL MEAN THE AMOUNT OF LOANS GRANTED BY
THE GUARANTOR TO THE BORROWER (ACCOUNTING ITEM: PAYABLE TO RELATED
PARTY -- FINANCING)
(b) The debt ratio shall not exceed 100% in year 2005, 110% in year 2006, and
120% commencing from year 2007. For the purposes of calculating this ratio:
(i) DEBT RATIO = (TOTAL LIABILITIES - RELATED PARTY TRANSACTIONS) DIVIDED
BY (TANGIBLE NET WORTH + OUTSTANDING GUARANTEES & ENDORSEMENTS)
(ii) "OUTSTANDING GUARANTEES & ENDORSEMENTS" SHALL MEAN THE OUTSTANDING
AMOUNT OF GUARANTEES AND ENDORSEMENTS GRANTED BY THE BORROWER IN
ACCORDANCE WITH ITS "GUARANTEES & ENDORSEMENTS REGULATIONS".
26
(c) Tangible Net Worth (Net Worth less Intangible Assets plus Related Party
Transactions) shall not be less than Three Billion New Taiwan Dollars
(NTD3,000,000,000).
Unless otherwise provided in this Agreement, the contents and definitions of the
above accounting terminology shall be in accordance with the contents and
definitions adopted by the Republic of China's Generally Accepted Accounting
Principles (hereafter "ROC GAAP").
8.9.1 Within ninety (90) days of the end of each first half of the Borrower's
accounting year, the Borrower shall provide the Agent (to forward to each Bank)
with the internal financial statements of the Borrower for such period (where
such statements are required by law to be audited and certified by an
accountant, the Borrower shall also provide the audit report and relevant
notes), which shall include the consolidated (not required if preparation of
consolidated statements is not required by law) and unconsolidated balance
sheets, profit and loss statements, and cash flow statements of the Borrower for
such period, together with the same data for the same period of the preceding
accounting year. The said statements shall be as detailed as reasonably
possible, and the information shall be presented in New Taiwan Dollars and in
accordance with ROC GAAP. Upon providing the said financial statements, the
Borrower shall also attach a declaration issued by the executive financial
officer (in the form set out in EXHIBIT 4), setting out calculations for the
various financial standards required under this Agreement, and declaring that no
Event of Default described in this Agreement has occurred.
8.9.2 Within one hundred twenty (120) days of the end of each accounting year of
the Borrower, the Borrower shall provide the Agent (to forward to each Bank)
with the audit report and notes in respect of the Borrower for the year, which
shall include the consolidated (not required if preparation of consolidated
statements is not required by law) and unconsolidated balance sheets, profit and
loss statements, cash flow statements, change of shareholders equity table, and
overview and profit and loss statement of long-term investments of the Borrower
for such period. The said statements shall be as detailed as reasonably
possible, and the information shall be presented in New Taiwan Dollars. The
audit report shall be prepared and certified by an independent accounting firm
approved by the Agent, in accordance with the generally applicable audit
standards. Information contained in the said statements shall be prepared in
accordance with generally accepted accounting principles. Upon providing the
said financial statements, the Borrower shall also attach a declaration issued
by the executive financial officer (in the form set out in EXHIBIT 4), setting
out calculations for the various financial standards required under this
Agreement, and declaring that no Event of Default described in this Agreement
has occurred.
8.9.3 The Borrower shall ensure that the Guarantor will provide the financial
statements of the Guarantor to the Agent to forward to each Bank, on a timely
basis, in accordance with provisions of the Letter of guarantee.
27
8.9.4 At the reasonable request of the Agent from time to time, the Borrower
shall provide all relevant information relating to the finances, business,
operations, principal shareholder structure and assets of the Borrower to the
Agent. Upon providing the various financial statements, the Borrower shall
provide sufficient copies to enable the Agent to distribute a copy to each Bank.
The Borrower hereby authorizes the Agent to provide each Bank with the various
financial statements and information provided by the Borrower.
8.9.5 The Borrower shall ensure that the contents of the financial statements
prepared by the Borrower are in compliance with the laws of the Republic of
China and generally accepted accounting principles, and that the substantive
contents of the documents and information relating to the Borrower, as provided
by the Borrower to the Agent are true, correct and complete in all material
respects.
8.10.1 The Borrower shall purchase various insurance policies in respect of the
Factory Buildings, the Equipment, its general assets and related businesses, for
the sums and events generally insured by companies engaged in the same kind of
businesses or by other companies in the same industry with similar assets and
risks. The said insurance policies shall be purchased from a reputable insurance
company.
8.10.2 The Borrower shall maintain insurance for the Factory Buildings and the
Equipment against the risk of fire. The said insurance shall be purchased from a
reputable insurance company and the cost of insurance shall be the
responsibility of the Borrower. The insured amount: (i) for the Factory
Buildings shall not be less than the Net Value of the same; (ii) for the
Equipment shall not be less than 110% of the amount drawn upon the Facility
Amount on the basis of such Equipment. However, where the book values of the
said Objects are decreased due to depreciation as of the year subsequent to the
purchase of the said insurance, the insured amounts may be reduced accordingly,
provided that the Borrower shall provide the Agent with a new Appraisal Report
evidencing the decrease of the book value, or an audit report issued by an
accountant. Insurance benefits derived from the aforementioned insurance
policies shall be transferred to the Agent in accordance with the provisions of
the Assignment Agreement, and the Agent shall be named as the sole beneficiary
with priority. The Borrower shall also obtain a Letter of Undertaking from the
relevant insurers (as detailed in the schedules attached to the Assignment
Agreement) as required by the Agent. Stipulations relating to the insurance
beneficiary may not be altered without the written consent of the Agent. The
insurance policies shall also be annotated with the payout terms approved by the
Agent. The original insurance policy and a copy of the premium payment receipt
shall both be delivered to the Agent for safekeeping. The Borrower shall
complete renewal of the said insurance policies
28
under the same terms prior to expiry of the said policies, and the original copy
of the renewed insurance policy and the Letter of Undertaking obtained from the
relevant insurers, in the format and contents required by the Agent, shall be
delivered to the Agent. In the event that the Borrower fails to purchase or
renew the insurances as required under this Agreement, the Agent is entitled
(but not obligated) to do so on its behalf, and the related costs shall be borne
by the Borrower. In the event that a Bank or the Agent makes payment on behalf
of the Borrower, the Borrower shall immediately reimburse the payment upon
receiving the notice from the Bank or the Agent, failing which interest shall be
assed at the Compensatory Interest Rate from the date that payment is made by
the Bank or the Agent until the date of reimbursement by the Borrower.
8.11 As at the signing date of this Agreement, no shareholder of the Borrower --
other than the Guarantor -- has made any shareholders advances to the Borrower
or holds any similar claims. In the event that any shareholders advances or
similar claim subsequently arises in respect of any shareholders of the Borrower
other than the Guarantor, the Borrower may not make any repayment or payment in
respect of such shareholders advance or similar claim until such time that all
liabilities under the Facility has been repaid, and the Borrower shall obtain
from such advancing shareholder a Consent of Subordinate Claim in the form and
content stipulated in EXHIBIT 9, and deliver the same to the Agent. The Borrower
also agrees that if a shareholder of the Borrower is a subsidiary of the
Guarantor and payment of any sum to such shareholder is subject to this Article
8.11, such shareholder shall not make any advances to the Borrower and the
Borrower shall not borrow from such shareholder.
8.12 Where the Land and Buildings contain any unregistered buildings, the
Borrower may not sell, lease or other dispose of the said unregistered
buildings. The Borrower warrants that where it is subsequently possible to
register ownership in respect of the said unregistered buildings, the Borrower
shall register a mortgage in respect of such buildings in favor of the Agent as
collateral for the Facility, and that in the event of exercise of the Mortgages
by the Agent, the Agent may also dispose of the said buildings.
8.13 All monies obtained by the Borrower under this Facility shall be used to
finance or refinance the Project, and the Borrower may not use the said amounts
for any other purpose, although the Agent and the Banks do not have any
obligation to monitor the acts of the Borrower in actually using the said
monies.
8.14 All representations and warranties made by the Borrower in this Agreement
and the Security Documents are correct, true and complete at any time. All
representations and warranties under Article 7, except for Articles 7.7 and
7.12, shall be deemed repeated on each Interest Payment Date.
29
ARTICLE 9 SUPPORT AND COLLATERAL
9.1 Letter of Guarantee
For the purpose of guaranteeing the various obligations of the Borrower under
this Agreement, prior to the initial Drawdown the Borrower shall obtain a Letter
of Guarantee duly signed by the Guarantor in accordance with the provisions of
this Agreement and all other documents relating to the Guarantor as required
under this Agreement, and deliver the same to the Agent.
9.2 Mortgage
9.2.1 For the purpose of guaranteeing the various obligations of the Borrower
under this Agreement, pursuant to provisions of this Agreement the Borrower
shall enter into a Real Estate Mortgage Agreement (and Supplement) in the form
and content indicated in EXHIBIT 6 hereto with Chinatrust Commercial Bank as
well as duly execute other relevant documents required by the Agent (hereinafter
collectively referred to as "Real Estate Mortgage Agreement"). which shall grant
a first priority, maximum amount real estate mortgage in respect of all of the
Land and Buildings for a maximum amount not less than One Billion Eight Hundred
and Forty Million New Taiwan Dollars (NTD1,840,000,000) in favor of the Agent,
and shall complete the registration of the amendments to the mortgage
registration amount, security scope, and valid term in connection with the
mortgage over the Land and Buildings pursuant to the Real Estate Mortgage
Agreement. The Agent shall hold and enjoy all rights and interests under the
said Mortgage as a joint and several creditor on behalf of all Banks.
9.2.2 For the purpose of guaranteeing the various obligations of the Borrower
under this Agreement, pursuant to provisions of this Agreement the Borrower
shall execute a Chattel Mortgage Agreement in the form and content indicated in
EXHIBIT 7 of this Agreement and any other related documents necessary for
registration of mortgage with competent authority (together hereafter "Chattel
Mortgage Agreement"), which shall grant in favor of the Agent a first priority,
maximum amount chattel mortgage in respect of all of the Equipment, for a
maximum amount not less than 145% of the amount actually drawn on the Facility
in respect of the said Equipment, and shall complete the requisite
registrations. The Agent shall hold and enjoy all rights and interests under the
said Mortgage as a joint creditor on behalf of all Banks.
9.2.3 Upon completing registration of the Chattel Mortgage in respect of the
mortgaged Equipment, the Borrower shall affix a sign to each item of the
Equipment, in the manner required by
30
the Agent is mortgagee of the said item. Upon affixture of the said signs,
photographs shall be taken as evidence, which photographs shall be delivered to
the Agent for safekeeping within thirty (30) days of registration of the said
Mortgage.
9.2.4 Registration fees and all other related taxes or fees arising from
granting and registration of the aforementioned Mortgages (including any agent
fees) shall be borne by the Borrower.
9.2.5 In the event that during the effective period of the Facility, the
Borrower needs to upgrade its technology by retiring any Mortgaged Object and
replacing it with a new one, or any Mortgaged Object becomes irreparably
damaged, the Borrower may substitute the retired or damaged object ("Old
Object") with a newly purchased object (hereafter "New Object" (Chinese
characters), provided that the substitution of Mortgaged Objects shall comply
with the following requirements:
9.2.5.1 The invoiced value of a New Object may not be less than the invoiced
value of the Old Object;
9.2.5.2 The invoice date of the New Object shall not be more than one (1) year
before the date that substitution is requested by the Borrower;
9.2.5.3 Where the accumulated values of Mortgaged Objects (based on invoiced
values) requested for substitution by the Borrower within one (1) year does not
exceed Two Hundred Million New Taiwan Dollars (NTD200,000,000), the Borrower
must first obtain the written consent of the Agent before making the
substitution (the Banks hereby authorizes the Agent to solely determine whether
to grant consent for the substitution, without needing to separately notify the
Banks or obtain their consents); however, where the accumulated values requested
for substitution by the Borrower exceeds the aforementioned limit, the Borrower
must first obtain the written consent of the Majority Banks.
9.2.5.4 With regard to the New Objects for the purpose of substitution pursuant
to Article 9.2.5.3, the Borrower shall complete registration of change of the
Mortgaged Objects and transfer of the relevant insurance benefits in accordance
with the change (where the change is not registered, the Borrower must first
grant a first priority Mortgage and transfer the insurance benefits in respect
of the New Object pursuant to this Agreement for the same amount as the Old
Object, prior to requesting the Agent to cancel the Mortgage on the Old Object).
The Agent may directly proceed with alteration or cancellation of the Mortgage
on the Old Object, based on the items approved by the Agent or the Majority
Banks for substitution.
31
9.2.5.5 Where the Borrower is unable to produce an appropriate New Object but
nonetheless needs to replace an Mortgaged Object, the Borrower may also produce
a term deposit slip issued by a deposit bank approved by the Agent, with a face
value no less than the invoiced value of the Old Object, and the Borrower shall
grant a pledge over the said term deposit slip in favor of the Agent, in the
manner required by the Agent, in place of a New Object as collateral for the
Facility. The provisions in Article 9.2.5(c) and (d) above shall apply.
9.2.6 Upon a substitution of Mortgaged Objects pursuant to the provisions of
Article 9.2.5 of this Agreement, the New Object after the substitution
(including any pledged term deposit slips) shall be deemed to fall within the
definition of the "Mortgaged Objects" under this Agreement.
9.3 Assignment Agreement
For the purpose of guaranteeing the various obligations of the Borrower under
this Agreement, pursuant to provisions of this Agreement the Borrower shall
execute an Assignment Agreement in the form and content indicated in EXHIBIT 8
of this Agreement ("Assignment Agreement"), which shall assign all insurance
benefits in respect of the Factory Buildings and Equipment to the Agent, and
shall obtain from the various relevant insurance companies the Letter of
Undertaking stipulated in the said Assignment Agreement in respect of the said
assignment of benefits, and deliver the same to the Agent.
9.4 Security Interests
9.4.1 Parties to this Agreement agree that: The Agent shall be the mortgagee,
the benefit assignee, the insurance beneficiary or other guaranteed beneficiary
in respect of the various benefits and interests that each Bank may enjoy under
this Agreement concerning the Mortgaged Objects, the Assignment Agreement, the
Letter of Guarantee and the Security Documents, and the Agent shall hold,
control and exercise such rights and interests as a joint and several creditor,
and by virtue of the joint and several creditor relationship the Banks shall
proportionally enjoy the said rights and interests in accordance with the
proportional risks of the Facility borne by the Banks under this Agreement.
9.4.2 Irrespective of any provisions to the contrary under this Agreement, each
Bank agrees that: The various benefits and interests that each Bank may enjoy
under this Agreement concerning the Mortgaged Objects, the Assignment Agreement,
the Letter of Guarantee and the Security Documents shall be exercised by the
Agent in accordance with the relevant provisions of this Agreement and the
written instructions of the Majority Banks, for the interest of all of the Banks
and the Agent; that unless otherwise provided in this Agreement, no Bank may
individually exercise such benefits and interests ; and that the Agent may only
exercise such benefits and interests in accordance with the instructions of the
Majority Banks.
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9.4.3 The Agent and the Banks agree that upon full discharge of all relevant
liabilities under this Agreement and other related agreements by the Borrower,
and except where the Agent has exercised the relevant guaranteed benefits
according to this Agreement, the Security Documents under this Agreement shall
be unconditionally returned to the Borrower. Where it is necessary to cancel any
registrations in respect of such guaranteed benefits or undertake return
procedures, the Agent is hereby fully authorized to do so on behalf of the
Banks.
ARTICLE 10 DEFAULT
10.1 Event of Default:
The occurrence of any of the following shall constitute an Event of Default
under this Agreement:
10.1.1 The Borrower fails to (a) make any payment of principal or interest under
this Agreement or (b) make any payment due to a Bank, the Coordinating Arrangers
or the Agent under this Agreement, the Security Documents or any other agreement
related to this Agreement (including payment falling due under the original
Agreement, or falls due prematurely by virtue of the accelerated maturity
provisions stipulated below).
10.1.2 The Borrower fails to perform or violates any condition, undertaking,
agreement or obligation towards any Bank, the Coordinating Arrangers or the Bank
stipulated under this Agreement or the Security Documents, or performance of
such condition, undertaking, agreement or obligation is to become illegal, and
this Event of Default is not cured within fourteen (14) days of the earlier when
(a) the Borrower first becomes aware of such failure or (b) the Borrower
receives notice from the Agent to cure such default.
10.1.3 The Guarantor fails to perform or violates any condition, undertaking,
agreement or obligation stipulated under the Letter of Guarantee, or performance
of such condition, undertaking, agreement or obligation is to become illegal,
and this Event of Default is not cured within fourteen (14) days of the earlier
when (a) the Guarantor first becomes aware of such failure or (b) the Guarantor
receives notice from the Agent to cure such default.
10.1.4 Any representation or warranty made by the Borrower within this Agreement
or any of the Security Documents, or any other representation made in accordance
with this Agreement or the Security Documents, is found to be false in a
material respect when made or deemed made or is reasonably deemed by the
Majority Banks as becoming false or untrue in a material respect.
33
10.1.5 Any representation, warranty or other statement made by the Guarantor
under the Letter of Guarantee is found to be false in a material respect when
made or deemed made or is reasonably deemed by the Majority Banks as becoming
false or untrue in a material respect.
10.1.6 (a) The Borrower (whether as a principal borrower or a guarantor) fails
to repay the principal or interests of a monetary liability to any financial
institution, is subject to accelerated maturity of such liability or
circumstances have occurred that permit accelerated maturity of such a
liability; or (b) The Borrower (whether as a principal borrower or a guarantor)
is subject to accelerated maturity in respect of a monetary liability (including
financial leasing, hire-purchase or the like) to any creditor other than a
financial institution, or circumstances have occurred that permit accelerated
maturity of such a liability, and the accumulated amount of such a liability is
Two Hundred Million New Taiwan Dollars (NTD200,000,000) or more, or the
equivalent in another currency.
10.1.7 The Guarantor (whether as a principal borrower or a guarantor) fails to
repay the principal or interests of a monetary liability to any financial
institution or is subject to accelerated maturity of such liability; or (b) The
Guarantor (whether as a principal borrower or a guarantor) is subject to
accelerated maturity in respect of a monetary liability (including financial
leasing, hire purchase or the like) to any creditor other than a financial
institution and the accumulated amount of such a liability is Thirty Million US
Dollars (US$30,000,000) or more, or the equivalent in another currency.
10.1.8 The Borrower fails to maintain any of the financial ratios stipulated in
Article 8.8 of this Agreement.
10.1.9 The Borrower uses the funds draw on the Facility for a purpose other than
as stipulated in this Agreement.
10.1.10 The Borrower fails to purchase and maintain the various insurances
required under this Agreement in respect of the Mortgaged Objects.
10.1.11 The Borrower suspends its business for more than thirty (30) consecutive
days, or for more than ninety (90) days within a one (1) year period except
where such suspension is not sufficient to have a material adverse effect on the
Borrower's ability to perform its obligation.
10.1.12 The Borrower gives notice in writing that it is unable to make payment
when liabilities fall due, or applies (or is subject to an application) for
bankruptcy, is declared bankrupt or unable to
34
repay, or applies (or is subject to an application) for restructuring of the
company, is undergoing settlement under the Bankruptcy Act, liquidation,
dissolution or any other similar procedures or measures, or admits to any
detrimental material statements made by another person against the Borrower in
such proceedings.
10.1.13 The Guarantor gives notice in writing that it is unable to make payment
when liabilities fall due, or applies (or is subject to an application) for
bankruptcy, is declared bankrupt or unable to repay, or applies (or is subject
to an application) for restructuring of the company, is undergoing settlement
under the Bankruptcy Act, liquidation, dissolution or any other similar
procedures or measures, or admits to any detrimental material statements made by
another person against the Guarantor in such proceedings.
10.1.14 There is serious damage or loss of a Mortgaged Object, or such Mortgaged
Object is subject to compulsory use, compulsory appropriation or confiscation by
a government or competent authority which results in a detrimental impact on the
Borrower's business operations, provided that if the Borrower promptly provide a
sufficient New Object for substitution as requested by the Agent there shall be
no Event of Default hereunder in either case.
10.1.15 (a) The Borrower ceases its operations permanently or is ordered to
cease its operations permanently; (b) The Guarantor ceases its operations
permanently or is ordered to cease its operations permanently; or (c) The
Borrower's checks or notes are dishonored and the Borrower fails to provide
sufficient cash for such dishonored checks or notes within three (3) days, or
the Borrower has been blacklisted by a clearing house.
10.1.16 (a) Any part of the various guarantees or endorsements (including the
Note, the Mortgages, the Assignment Agreement, and the Letter of guarantee)
under this Agreement is terminated, rescinded, or becomes invalidated or
unenforceable, and the Borrower fails to immediately cure the above or repay the
Outstanding Loan in full; (b) A Mortgaged Object that is material to the
business of the Borrower is subject to provisional attachment, provisional
execution or any other preservation proceedings, compulsory execution,
attachment, seizure, auction, administrative disposal by a governmental
authority, restriction order or any other order in other similar proceedings; or
(c) All or substantially all of the assets of the Borrower other than the
Mortgaged Objects is subject to provisional attachment, provisional execution or
any other preservation proceedings, compulsory execution, attachment, seizure,
auction, administrative disposal by a governmental authority, confiscation,
restriction order or any other order in other similar proceedings, which fails
to be excluded or dismissed within fourteen (14) days and where the amount in
dispute is not less than One Hundred Million New Taiwan Dollars (NTD100,000,000)
or equivalent amount in other currency.
35
10.1.17 The Borrower is subject final and adverse judgments or arbitration
awards rendered by the court, arbitration association, or other decisions (which
are made in other similar judicial or administrative proceedings and have
similar effects as final judgments) and fails to make the payment in accordance
with such final and adverse judgments or arbitration awards or other decisions
within fourteen (14) days after those judgments, arbitration awards or decisions
are rendered.
10.1.18 The Guarantor is subject to irrevocable, final and adverse judgments or
arbitration awards rendered by the court, arbitration association, or other
decisions (which are made in other similar judicial or administrative
proceedings and have similar effects final judgments), and fails to make the
payment in accordance with such final and adverse judgments or arbitration
awards or other decisions within sixty (60) days after those judgments,
arbitration awards or decisions are rendered and where the amount of payment is
not less than Ten Million US Dollars (US$10,000,000) and is not sufficiently
covered by insurance.
10.1.19 There is any circumstance that causes the Majority Banks, based on their
professional judgment in good faith, to determine that it would have a material
adverse effect on the finances or operations of the Borrower and the Guarantor
taken as a whole, or ability of the Borrower and the Guarantor taken as a whole
to perform their obligations under this Agreement and the Letter of Guarantee.
10.2 Identification of Default
In the event of any dispute between the Banks and the Borrower or the Guarantor,
or amongst the individual Banks, as to whether an Event of Default has occurred,
any Bank may request the Agent in writing to seek confirmation from the Banks,
and obtain the determination of the Majority Banks.
10.3 Consequences of Default
10.3.1 Where an Event of Default has occurred, the Facility extended by the
Banks to the Borrower shall immediately be suspended, and may not be drawn upon
except with the consent of the Majority Banks (at which time the Agent shall
notify the Borrower); where the Majority Banks resolve that repayment by the
Borrower shall be pursued and the Agent is instructed in writing to do so, the
Agent shall immediately take the following steps in accordance with the written
instructions of the Majority Banks: (a) notify the Borrower in writing,
announcing that all outstanding amounts of the loan principal advanced, interest
and any other payments payable by the Borrower to any Bank and/or the Agent
under this Agreement shall fall due immediately (at which time the Borrower
shall immediately repay all of the aforementioned amounts); and/or (b) exercise
its rights as against the Mortgaged Objects and the various benefits and
interests under the Assignment Agreement, so that proceeds from disposal of the
relevant Mortgaged Objects may be used to repay any amounts
36
outstanding and payable by the Borrower in accordance with the provisions of
this Agreement; and/or (c) exercise the rights of the Agent under the Note
issued under this Agreement, and claim against the Borrower for payment; and/or
(d) pursue the Guarantor for repayment in accordance with the provisions of the
Letter of Guarantee; and/or (e) exercise any other rights granted by law, this
Agreement, the Security Documents or any other relevant agreement and document;
without being required to issue any further letters of demand, certificate of
refusal or any notice unless otherwise provided for in this Agreement. The
Borrower and the Guarantor hereby agrees to waive any and all rights to require
any Bank or the Agent to issue such letter of demand, certificate of refusal or
notice, to the maximum extent that such waiver is permissible by law.
10.3.2 Where an Event of Default occurs, the Borrower shall make payment of
interest or penalties to the Banks and/or the Agent in respect of any amounts
due but still outstanding, calculated from the date that such amounts becomes
due until such time that the amounts are actually paid by the Borrower
(including but not limited to the principal, interest, penalties, fees or any
advances), at the Compensatory Interest Rate stipulated in this Agreement; and
where any Bank and/or the Agent incurs any other costs or losses as a result of
the Default of the Borrower, the Borrower shall also indemnify such Bank and/or
Agent against such costs or losses in accordance with the supporting documents
provided by the Bank and/or the Agent.
10.3.3 The costs incurred by the Agent in relation to the exercise of the
various rights and taking of various steps mentioned above shall be shared by
the Banks in accordance with the proportional risks of the Facility borne by the
Banks, except where such costs have been paid by the Borrower or the Guarantor.
However, where the Borrower or the Guarantor has not paid such costs, the Agent
is not obliged to make such payments on behalf of the Borrower or the Guarantor,
and may require the Banks to advance such payments in accordance with the
proportional risks of the Facility borne by the Banks prior to making the
payments.
ARTICLE 11 AGENT, COORDINATING ARRANGERS AND BANKS
11.1 In accordance with the provisions of this Agreement, the Banks shall
appoint an Agent to coordinate the various matters under this Agreement and to
manage the Mortgaged Objects, and shall authorize the Agent to represent the
Banks in exercising their rights, in accordance with the provisions of this
Agreement and other relevant agreement. However, the Agent shall do so purely in
the role of the representative of the Banks; the Agent shall not be considered
an agent of the Borrower, nor a trustee under a trust relationship, and the
Agent: (a) does not bear any other responsibilities or obligations unless
expressly stated in this Agreement; (b) shall not be responsible to the Banks in
any way for any failure of the Borrower or the Guarantor to perform their
obligations under this Agreement or any other relevant agreement; (c) shall not
be obliged to initiate any litigious
37
proceedings or claims against the Borrower, the Guarantor or any other person in
relation to this Agreement or any other relevant agreement, except in accordance
with the written instructions of the Majority Banks pursuant to provisions of
this Agreement; and (d) is not obliged to take any action that the Agent, in its
judgment in good faith, deems will violate the laws of the Republic of China or
any other applicable laws. The Agent may retain consultants, accounting staff or
agents for the purposes of performing its obligations under this Agreement, and
may rely upon the professional advice given by such persons, provided that it
shall not be held responsible in any way for its acts in selecting and hiring
such persons in good faith, except where the Agent has committed an intentional
or seriously negligent act in doing so.
11.2 Each of the Banks understands and acknowledges that it shall independently
assess, inspect and be responsible for the credit records of the Borrower and
the Guarantor, the values of the Mortgaged Objects, and other relevant
information. Relevant risks applicable to each Bank as a result of making
available the Facility shall be independently borne by such Bank. The Agent and
the Coordinating Arrangers have not made any representations or guarantees
regarding, nor shall be responsible in any way for, the credit records and
ability to perform of the Borrower and the Guarantor, the values of the
Mortgaged Objects, or any other matters relating to this Agreement.
11.3 The Agent may not take any action that is contrary to the written
instructions of the Majority Banks, and shall take the legal actions in
accordance with this Agreement or the law, based on the written instructions of
the Majority Banks. The Agent shall not be responsible in any way to the
Borrower or any Bank in respect of actions taken in accordance with the written
instructions of the Majority Banks, or actions subsequently approved by the
majority Banks. Unless the Majority Banks have issued a written instruction to
the Agent to take a certain action, the Agent shall not be held responsible in
any way for failing to take any action. Irrespective of any other provisions to
the contrary in this Agreement, the Agent may refuse to take any action on
behalf of the Banks until it has received confirmation that it will be
satisfactorily compensated for the related costs. In addition, except for an
exercise of the right of cancellation under this Agreement, no Bank may take any
action individually without the written consent of the Majority Banks, nor take
any action or make any omission that would conflict or be inconsistent with a
decision of the Majority Banks (decisions made by the Majority Banks pursuant to
relevant provisions of this Agreement shall be binding on all the Banks).
11.4 The Agent shall handle matters relating to this agreement in accordance
with the provisions of this Agreement, and shall handle matters relating to the
Facility Amount, the Mortgaged Objects and the exercise of rights under this
Agreement in accordance with relevant provisions of this Agreement and the
Security Documents. In handling such matters, the agent shall act in accordance
with the provisions of this Agreement and/or the written instructions of the
Majority Banks, and may (but is
38
not obliged to) exercise the same degree of care that it exercises in handling
facilities granted by the Agent alone.
11.5 In respect of documents submitted to the Agent by the Banks and the
Borrower in accordance with the provisions of this Agreement, the Agent shall
verify the signatures and chops in accordance with normal procedures, but is not
required to further examine the contents or any other aspect of such documents.
In executing matters in relation to this Agreement, the Agent may rely on the
validity, authenticity and correctness of the signatures and contents of
relevant documents received. In addition, in making remittances to the Banks,
the Agent may rely upon the correctness of the addresses and remittance accounts
stipulated in respect of each Bank in SCHEDULE 1 of this Agreement.
11.6 In handling matters relating to the Facility Amount, the Agent shall
apportion the Facility Amount in accordance with the proportions stipulated in
this Agreement, provided that where actual calculations do not permit
apportionment to be made in such a manner, the Agent may use its reasonable
judgment in making the apportionment, and no Bank may object.
11.7 Unless otherwise stipulated in this Agreement, communications by the Agent
in relation to performance of this Agreement may be carried out by fax, and the
Agent may rely upon the authenticity and correctness of the contents of the
faxed documents it receives. The Agent shall not be responsible in any way for
the termination or delay of any transmissions or receptions of communication (by
telephone, fax or courier) or for any defect, error or consequences in the
transmission or reception process, except where such is caused by the
intentional act or serious negligence of the Agent.
11.8 Upon receiving any notices issued by the Borrower, the Agent shall notify
each of the Banks. Except for notices, reports, financial reports and other
requisite documents required to be delivered by the Agent to each of the Banks
under this Agreement, the Agent is not obliged to provide the Banks with any
other information in its possession concerning the credit record, general
business and financial status of the Borrower or the Guarantor. In addition, any
information noted or specified as "Classified" or "Confidential" by the Borrower
shall be kept confidential by the Agent and each Bank except the information
subject to the mandatory disclosure requirement of the applicable laws or under
this Agreement.
11.9 During the valid period of this Agreement, the Agent, the Coordinating
Arrangers or any of the Banks may engage in other transactions with the Borrower
or the Guarantor, unrelated to this Facility and unaffected by this Agreement,
in its role as a party other than the Agent, the Coordinating Arrangers or a
Bank.
39
11.10 The Agent may notify the Borrower and each of the Banks in writing at any
time that it shall resign from the position of the Agent as soon as a new Agent
takes office. The Majority Banks are also entitled to substitute the Agent. Upon
the resignation or substitution of an Agent, the Majority Banks are entitled to
elect any of the Banks as the new Agent. Where within sixty (60) days of the
resignation by the Agent or the substitution of the Agent by the Majority Banks,
the Majority Banks fail to elect a new Agent or the newly elected Agent does not
agree to take the office, the original Agent may select any one of the Banks as
its successor, provided that the succeeding new Agent shall agree in writing
that it accepts the provisions of this Agreement. The duties and rights of the
original Agent shall be terminated when the new Agent takes office, provided
that the original Agent may continue to collect any costs falling due but
uncollected during the period of its office. This Article of this Agreement
expressly stipulates that any acts taken by the original Agent prior to its
duties being terminated shall remain applicable.
11.11 The Agent, upon receiving payments due to the Banks from the Borrower or
the Guarantor on behalf of the common interest of the Banks, and after fist
offsetting various costs in accordance with this Agreement, shall distribute or
apportion such payments in funds of the same type in accordance with this
Agreement (where payments are to be distributed amongst the Banks, the
distribution shall be made in accordance with the proportional risks of the
Facility borne by each of the Banks), and shall deliver such payments to each
Bank by the business day following actual receipt of the payments. The agent's
obligation to distribute the said payments shall be limited to the amounts that
it actually receives, and the Agent is not obliged to advance any amounts. The
Agent may assume that the relevant persons with obligation to pay will make the
relevant payments to the Agent in accordance with the Agreement, and may (but is
not obliged to) distribute or pay such amounts to each of the Banks on the basis
of such assumption and in the aforementioned manner. However, where the Agent
relies on such assumption in making the payment to a Bank due to receive such
payment, but subsequently finds that it has not in fact received the relevant
payment, the Bank that receives the said amount from the Agent shall refund the
payment immediately upon receiving the notice from the Agent, and shall pay
interest to the Agent from the date that it receives the payment and until the
date that refund is actually made to the Agent, calculated at the PIBC interest
rate applicable on the closing of the business day that it receives the payment.
11.12 Unless the Agent has received the notice from any Bank or the Borrower
concerning the occurrence of an Event of Default, which notice expressly states
that it is a "notice of Event of Default", the Agent shall not be deemed to have
known or has been informed as to the occurrence of an event of Default. Upon
receiving the said notice, the Agent shall notify each of the Banks as soon as
possible, and unless otherwise stipulated in this Agreement, the Agent shall
take action with regards to the Event of Default in accordance with the
instructions of the Majority Banks, provided
40
that following occurrence of the said Event of Default and prior to the Agent
receiving substantive instructions, the Agent may (but is not obliged to)
exercise the same degree of care that it would exercise in relation to a
facility granted by it alone, in independently determining whether to take any
action that it believes to be most advantageous to the Banks as a group in light
of the Event of Default.
11.13 Any damage caused to the Borrower as a result of any act or omission of a
Bank shall be the responsibility of the relevant Bank, and the Coordinating
Arrangers, the Agent or each of the other Banks shall not be responsible in any
way.
11.14 In the event of any damage or loss to the Agent or a Bank in the course of
performance of this Agreement by the Borrower or its agent or employee, as a
result of matters attributable to the Borrower or its agent or employee, the
Borrower shall be liable for fully indemnifying against such damage or loss.
ARTICLE 12 SET-OFF
12.1 In the event that the Borrower fails to perform its obligations under this
Agreement, the Security Documents or any other relevant agreement in connection
with the Facility, the Banks and the Agent, in addition to exercising the
various rights of claim under this agreement, shall also be entitled to (but are
not obliged to) directly offset any monies in accounts (irrespective of whether
of the same currency) held by the Borrower at the said Banks or the Agent
(including their headquarters and all branches), and all claims of the Borrower
against the Banks and the Agent, against the liabilities payable by the Borrower
to the Banks and/or the Agent under this Agreement (the Borrower further agrees
that such accounts or other claims shall be deemed to mature automatically upon
such time that the right of offset is exercised by the relevant Bank or the
Agent), and shall notify the Borrower of the same. Where an account held by the
Borrower is a term deposit account, the relevant Bank or the Agent may directly
terminate the term deposit account agreement prematurely and offset monies in
the said account against the liabilities under this Agreement, notwithstanding
that the deposit term has not expired; where an account is a check account, the
Borrower agrees that an announcement by the Banks that all of the liabilities
under the Facility are immediately due and repayable shall be a condition for
termination of the check account agreement , and upon constitution of the said
condition for termination, the aforementioned check account agreement shall
cease to be effective, and the Bank or the Agent may directly exercise its right
of offset and notify the Borrower of the same after exercising the right of
offset. To the maximum degree permissible by law, an intention to exercise the
right of offset by the relevant Bank or the Agent and the actual exercise of the
right shall be deemed to take effect at the time that the offset is made in the
books. Where the
41
offset amount is insufficient to offset the full amount of the liabilities of
the Borrower, the Borrower shall remain liable for repaying the insufficiency.
12.2 In order to maintain the proportional repayments received by each of the
Banks, where any payments received by a Bank in respect of the Facility (whether
as a result of voluntary or involuntary offset by the Borrower or the Guarantor,
or in any other way) exceeds the proportional repayment due to the Bank in
accordance with this Agreement, the benefiting Bank shall immediately accept the
assignment by the other Banks a right of claim equivalent to the amount of the
excess repayment, to the extent deemed necessary by law, so that such Bank may
share with the other Banks the proceeds of the additional repayment. However,
where the benefiting Bank that received assignment of the right of claim is
subsequently required to refund all or part of the additional repayment, the
aforementioned assignment of right of claim shall be rescinded immediately, and
the consideration paid for the assignment of right of claim shall also be
refunded without interest; provided that the aforementioned assignment of rights
of claim between the Banks shall not affect the joint claim of the Banks against
the Borrower. The Borrower and the Guarantor agree that any Bank may exercise
all rights (including the right of offset), in the same manner as for other
ordinary rights of claim, in respect of a right of claim purchased from another
Bank in accordance with the provisions of this Agreement.
12.3 Where any other creditor of the Borrower or Guarantor compulsorily executes
against any account of the Borrower or Guarantor at a Bank or the Agent, and the
executing court issues an attachment order, collection order, or transfer or
payment transfer order to the Bank or the Agent in respect of such account, the
said Bank or the Agent is entitled to declare that the amount of the outstanding
liabilities under this Agreement that is equivalent to the amount of the monies
deposited by the Borrower at the said Bank or the Agent as stated on the
aforementioned execution order as being subject to execution, shall
automatically fall due immediately and prematurely, and the Bank or the Agent
shall exercise the right of offset against such account immediately.
12.4 Each and every Bank understands that: Notwithstanding the claim of each of
the Banks against the Borrower and the Guarantor under this Agreement is a joint
claim, each Bank shall nonetheless be repaid and share the benefit of guarantees
in accordance with their proportional share of the Facility risk, and all losses
and risks relating to this Facility shall also be apportioned between and borne
by the Banks in accordance with their proportional share of the Facility risk as
between each of the Banks.
42
ARTICLE 13 COSTS
13.1 All reasonable legal costs and other costs incurred by the Coordinating
Arrangers in respect of coordinating the Banks and preparing this Agreement, the
Letter of guarantee, the Security Documents or any other related documents, as
well as any subsequent amendments, additions or deletions of the relevant
documents (including but not limited to the agreement execution costs and
mortgage registration costs), irrespective of whether such costs are incurred
prior to execution, during the term, or after the expiry of this Agreement,
shall be borne by the Borrower.
13.2 All reasonable attorneys fees and legal costs incurred by a Bank and/or the
Agent in exercising the rights under this Agreement, the Security Documents and
other relevant agreements, as a result of an act contrary to provisions of the
Agreement or an Event of Default committed by the Borrower or the Guarantor
(including but not limited to litigation fees, the costs expended in obtaining a
right of execution at law, costs of compulsory execution, costs of participation
in a distribution, arbitration costs, the costs of forming a litigious or
non-litigious settlement or executing a settlement agreement, and all other
relevant costs), irrespective of whether such costs are incurred prior to
execution, during the term, or after the expiry of this Agreement, shall be
borne by the Borrower.
13.3 Where a Borrower fails to bear the aforementioned costs in accordance with
this Agreement, the Agent may require each of the Banks to share and advance
such costs in accordance with their proportional share of the Facility risk (if
the Borrower has not yet made any drawdown upon the Facility Amount at the time,
then the proportional commitment by each of the Banks in respect of the Facility
under this Agreement), and the Agent shall take the relevant action only upon
receipt of full payment from the Banks. Where the Agent has advanced the
payment, the Banks shall reimburse the Agent immediately upon receiving the
notice of the Agent, and the Agent may directly deduct the payment from monies
to be paid to the Banks under this Agreement.
13.4 The Banks, the Coordinating Arrangers and the Agent are not obliged to
advance payments on behalf of the Borrower. However, where a Bank, the
Coordinating Arrangers or the Agent has done so, the Borrower shall reimburse
the payment immediately upon receiving the notice from the Bank, the
Coordinating Arrangers or the Agent, failing which interest at the Compensatory
Interest Rate due to the Bank, the Coordinating Arrangers or the Agent shall be
calculated upon such payment from the date of advance payment by the Bank, the
Coordinating Arrangers or the Agent until such time that reimbursement is
actually made by the Borrower.
ARTICLE 14 NOTICES AND DELIVERY OF PAYMENTS BY AGENT
14.1 Notices made under this Agreement shall be made in writing (by letter or
fax) in accordance with relevant provisions of this Agreement; in addition: (a)
notices made to the Borrower or the Agent
43
shall be delivered to the address or fax number set out below in this Agreement
(or any other address or fax number subsequently notified by the Borrower or the
Agent in writing); (b) notices made to a Bank shall be delivered to the address
or fax number of the relevant Bank as set out in SCHEDULE 1 of this Agreement
(or any other address or fax number subsequently notified by the Bank in
writing); (c) monies payable by the Borrower and the Agent to the Agent or to
the Banks under this Agreement, if made by electronic transfer, shall be
remitted to the relevant Banks or the Agent by the inter-bank remittance system
to the account detailed in SCHEDULE 1 of this Agreement or detailed below.
Notices delivered in person shall be deemed duly delivered when so delivered;
notices sent by prepaid registered post shall be deemed duly delivered five (5)
days after posting; notices sent by fax shall be confirmed by delivering written
confirmations and such notices shall be deemed delivered when the written
confirmations thereto have been received:
(a) The Borrower: Amkor Technology Taiwan
Address: Xx. 0, Xxx-Xxxx Xxx. Xxxxx-Xxxx Xx.,
Xxxxxxx Xxxxxx, Xxxxxxx Xxxxx 000
Xxxxxx, X.X.X.
Telephone No: 000-0-000-0000
Fax No: 000-0-000-0000
Contact: Finance Division
CC: Guarantor: Amkor Technology, Inc.
Address: 0000 Xxxxx Xxxxx Xxxx, Xxxxxxxx, XX 00000, X.X.X.
Telephone: (000) 000-0000
Fax: (000) 000-0000
Contact: Legal Department
(b) The Agent: Chinatrust Commercial Bank
Address: 0xx Xxxxx, 0 Xxxxxxxx Xxxx, Xxxxxx Xxxx
Telephone No: (02) 2722-2002 ext. 1127 (Xx. Xxx Xxx-qi, Manager)
Fax No: (00) 0000-0000 / 0000-0000
Contact: Investment Banking Department
14.2 Any party that changes its address, telephone number, fax number or
remittance account shall immediately notify the Agent and other parties under
this Agreement in writing. In the event that such a notice is not given in
accordance with this Agreement, the changing party may not rely upon the change
as against the Agent or the other parties of this Agreement.
44
ARTICLE 15 NON-WAIVER
Rights and remedies available to the Coordinating Arrangers, the Agent and the
Banks under this Agreement the Security Documents and related documents shall
not exclude any other rights and remedies that may be claimed by the owner of
such right under the law. Postponed exercise of a right by the Coordinating
Arrangers, the Agent or the Banks shall not be deemed a waiver of such right;
and the exercise of a part of the right shall not be deemed a waiver of other
parts of the right.
ARTICLE 16 AMENDMENT AND ASSIGNMENT
16.1 An amendment or revision of this Agreement shall be made in writing, shall
be signed by the Borrower, the Coordinating Arrangers, the Agent and each of the
Banks, and shall be agreed by the Guarantor in writing. However, amendments of
stipulations relating to the agreement between the Agent and the Banks, which
are not directly related to the Borrower or the Guarantor, shall require only
the consent of the Agent and the Majority Banks and shall be made in writing,
without the need for consent of the Borrower or the Guarantor (although the
Borrower and the Guarantor shall be notified of such amendment).
16.2 The Banks, the Coordinating Arrangers and the Agent agree that: Except for
matters otherwise provided in this Agreement or that are expressly stipulated as
requiring the consent of all the Banks and other parties, which stipulations
shall apply, and matters relating to: (a) an amendment to the form, the validity
period, or the Drawdown Period of the Facility Amount; (b) an amendment to the
amount, the interest (fee) rate or due date of a payment; (c) the increase of
the Facility Amount under this Agreement; (d) the return or cancellation of a
security or collateral under Article 9 of this Agreement (except where it is
made by the Agent pursuant to relevant provisions of this Agreement), or an
amendment or revision of contents of Article 9 of this Agreement or the Letter
of Guarantee; (e) an amendment to the definition of "Majority Banks"; or (f) an
amendment to Article 16.1, 16.2 or 16.3 of this Agreement, which shall be
subject to the written consent of all of the Banks; all other amendments or
revisions to the exclusion of the obligations of the Borrower under this
Agreement, the exclusion of liability for an Event of Default, or other matters
relating to this Agreement may be so excluded, amended or revised upon the
written consent of the Majority Banks (a decision by the Majority Banks in
accordance with such provision shall be binding on all of the Banks and the
Coordinating Arrangers).
16.3 In respect of an exclusion, amendment or revision made by the written
consent of all of the Banks or the Majority Banks, each of the Banks the
Coordinating Arrangers and the Agent hereby agree and unconditionally authorize
the Agent to execute the relevant documents on behalf of all of
45
the Banks, the Coordinating Arrangers and the Agent, in accordance with the
contents of such written consent issued by all of the Banks or the Majority
Banks (acts of the Agent in accordance with this provision shall be binding on
all of the Banks and the Coordinating Arrangers).
16.4 This Agreement shall be binding on the assignees or successors of a party
to this Agreement, or any other person who accepts or succeeds to the rights or
obligations of such party according to law; however, the Borrower and the
Guarantor may not assign their rights or obligations under this Agreement
without the prior written consent of the Agent and all of the banks.
16.5 A Bank may notify the Borrower and the Agent at any time (without the
consent of the Borrower, the Agent or any other Bank) to amend its contractual
entity for the purposes of this Facility; however, where a Bank proposes to
assign its rights and/or obligations under this Agreement to a third party, it
shall first obtain the consent of the Borrower, provided that the Borrower may
not unreasonably refuse and such assignment will not immediately result in an
increased cost or addition tax liabilities to the Borrower beyond the Borrower's
liabilities provided for in this Agreement. In respect of each such assignment,
the Bank proposing to assign the rights and/or obligations shall pay the Agent a
processing fee of One Hundred Thousand New Taiwan Dollars (NTD100,000).
16.6 A Bank may enter into a risk sharing agreement with another person in
respect of its claim under this Agreement, without being required to notify the
Borrower, the Agent or any other Bank, provided that such other party of the
risk sharing agreement may not directly assert any right of claim against the
Borrower or any other party under this Agreement.
16.7 In addition to provisions of information according to relevant laws, from
time to time a Bank may provide contents of this Agreement, or information held
by it concerning the Borrower, the Guarantor or parties related to this
Agreement, to an assignee of the rights under this Facility or a person sharing
the risks (including persons interested in being assigned such rights or sharing
such risks), the Joint Credit Information Center, a credit assessment
institution, a trustee for asset securitization or a credit rating institution,
other institutions that provides outsourcing services to the Agent or the Bank
in accordance with the rules governing the outsourcing business promulgated by
the competent authorities, or other institutions or persons, such as CPA,
attorneys or real estate registration agent that provides services to the Agent
or the Bank, without requiring the separate consent of the Borrower, the
Guarantor or the relevant parties. However, the Agent and the Bank shall require
the above-mentioned institutions or persons to keep the relevant information
confidential.
16.8 During the valid term of this Facility, where the Borrower requests the
consent of a Bank in respect of an amendment of terms or exclusion of relevant
obligations in the event of occurrence of a
46
major circumstance, the Borrower shall, at the time that each request is
submitted to the Agent: (a) pay the Agent a processing fee of Ten Thousand New
Taiwan Dollars (NTD10,000), and (b) pay each of the Banks a processing fee of
Ten Thousand New Taiwan Dollars (NTD10,000), irrespective of whether the request
is ultimately approved. The said fees shall be paid to the agent, and then be
distributed amongst the Banks by the Agent in accordance with relevant
provisions of this Agreement.
ARTICLE 17 GOVERNING LAW
This Agreement shall be governed by the laws of the Republic of China. Any
matters not fully stipulated within this Agreement shall be in accordance with
relevant laws of the Republic of China.
ARTICLE 18 JURISDICTION
All of the parties agree that in the event of litigation arising from this
Agreement, the Taipei District Court of Taiwan may have jurisdiction as the
court in the first instance, provided that this article does not preclude any
rights of the Agent or the Banks to undertake any other legal proceedings
against the Borrower in any other courts in pursuit of repayment.
PARTIES:
BORROWER: Amkor Technology Taiwan
Chairman: /s/ Xxxxxxx X. Xxxxx
COORDINATING ARRANGER, AGENT AND BANK:
Chinatrust Commercial Bank
Authorized Signatory: /s/ Authorized Signatory
COORDINATING ARRANGER AND BANK:
Xx Xxxxx Commercial Bank
Authorized Signatory: /s/ Authorized Signatory
47
HSINCHU INTERNATIONAL BANK:
/s/ Authorized Signatory
------------------------
Authorized Signatory
XXXXX XXX BANK:
/s/ Authorized Signatory
------------------------
Authorized Signatory
FIRST COMMERCIAL BANK:
/s/ Authorized Signatory
------------------------
Authorized Signatory
SHANGHAI COMMERCIAL AND SAVING BANK:
/s/ Authorized Signatory
------------------------
Authorized Signatory
CHINA UNITED TRUST AND INVESTMENT
CORPORATION:
/s/ Authorized Signatory
------------------------
Authorized Signatory
TAICHUNG COMMERCIAL BANK:
/s/ Authorized Signatory
------------------------
Authorized Signatory
HWATAI COMMERCIAL BANK:
/s/ Authorized Signatory
------------------------
Authorized Signatory
FUHWA COMMERCIAL BANK:
/s/ Authorized Signatory
------------------------
Authorized Signatory
48
